CON LAW OUTLINE – Neuborne, Spring 2001

Process

I. Intro
A. Original Const had no Bill of Rights, because:
a. didn’t believe in substantive individual rights (didn’t think it’d be so useful)
b. thought that the stuff left out of Bill of Rights would be assumed to not be protected
c. worried the Const would become too powerful
B. So did vertical & horiz fragmentations of power instead
C. 3 choices of democracy:
a. unconstrained, private choice made when you vote
b. fairly constrained public choice made when legislature decides to vote for a policy (legisl has wide
discretion, but must be explained, may be affected by soc standards, & may be affected by their
roles as reps for their constituencies)
c. constrained choice judge makes, which some say should be as agent to carry out someone else’s
will, w/no creative power (legisl speaking thru the judge), & others say should involve more
choice & figuring out of answers.
II. Separation of Powers – Horizontal fragmentation of power
A. Intro
a. Asks where in the hierarchy of government (central to local) power gets placed
b. Government has to act in 1 of 3 ways:
i. make new rule.
1. Art I: legislative branch.
2. Gives more state power & power to people, by bein pluralistic & democratically
accountable
3. No direct election of Senate until 17th A (until then, senators elected by state
legislature). 17th A led to less state power & more power to people.
ii. enforce existing rule.
1. Art II: executive branch.
2. Unitary executive implements what’s made by pluralistic legislature.
iii. resolve disputes about what rules mean.
1. Art III: judiciary.
c. 3 thries of sep of powers:
i. Efficiency: Pos thry of sep of powers (functional): allocate functions & powers in most
efficient way
ii. Prophylactic: Neg thry of sep of powers: allocate powers for fragmentation & checks &
balances, so that no branch has more than 1 power or too much power, & that branches
confer w/each other & agree
iii. Virtual representation: pure majoritarianism is risky (could lead to tyranny). Sep of
powers represents interests of societal elements that a purely democratic (majoritarian)
process would otherwise be unable to represent
d. Sep of powers can be thought of in 2 ways:
i. Formalistic (text of Constitution, formal definition/allocation of powers)
ii. Functional (ie Jackson’s concurrence in Youngstown)
B. Judicial review
a. Is no judicial review clause in Const. Article III gives judiciary jurisdiction over cases
arising under Const or the laws of US.
b. Assertion of jud review power: Marbury v Madison (written by Marshall)
i. Facts: Marbury was appointed justice of peace. Jefferson (new pres) told Madison to
withhold the commissions of Marbury & other “midnight” appointees of Adams (outgoing
pres). So to get Madison to deliver the commissions, Marbury & others brought writ of
mandamus directly to Sup Court under Judiciary Act of 1789 (which established US
courts &, in Section 13, let Sup Court issue writs of mandamus to public officers.)
ii. Held:
 1. Judiciary has power to declare a Congressional statute unconst if it violates Const.
(but not simply if it violates some general value). Sup Court must determine the
operation of conflicting laws.
2. Marbury loses because Court doesn’t have original JD to grant mandamus action.
Art III, Section 2 (which grants Sup Court original JD in a narrow range of cases
& says that it has appellate JD in all other cases) makes it final that there’s no
original JD assigned for this type of case. So Congress, by granting this power to
Sup Court in 1789 Act, tried to grant SCt more power than it had to grant.
3. So Art III prevails over Jud Act since they’re inconsistent. Section 13 of Judiciary
Act of 1789, allowing mandamus action, is unconstitutional.
iii. Analysis:
1. Problems:
a. Why should Marshall’s reading of Article III be superior to the 1789
legislature, which comprised many members who were the original
authors of the Constitution?
b. requiring Const to governmentern when there’s collision b/w 2 provisions
allowes for the argument of judicial review in cases where U don’t need
it.
2. Marshall asserts right to issue a writ of mandamus against the President. Federal
judiciary has right to tell president that what he’s doing is against the law
3. Gives several explanations for judicial review:
a. Passive: Judge is reluctant participant in politicalics, driven into it to carry
out his job, & can’t be blamed for stickin his finger into politicalical
waters.
b. Classic: Judge must lay down Const next to statute, and if there’s
collision, Const wins.
c. Mechanical: Judge has no power or choice – must obey Const.
4. It’s unclear if there should be jud review when reas peeps can differ on what
statute means. It’s fine when inconsistency is blatant, but why should judge’s
reading of whether there’s an inconsistency be superior to the Const framers’ text?
5. Marshall might’ve purposely wrote this so that he could make Sup Court issue
mandamus to Cabinet member actin under Pres in future, because he was
politicalical enemy of Jefferson. Maybe Marshall feared impeachment if he
granted mandamus now but still wanted to get even.
c. Theories of jud review:
i. Mechanical
1. laid out in Marbury
2. More support for it: if there was no jud review, either Congress would be too
powerful, or each branch would decide to enforce only those laws it felt were
constitutional.
3. Rebuttals to Marbury & jud review:
a. Lotsa countries have constitutions & don’t have constitutional checks on
national legislatures
b. Oath to uphold Const is taken not just by judges but by all government
officers.
c. It’s as much the duty of other branches to decide constitutionality of
bills/resolutions as it is the court…the court shouldn’t have more
authority than other branches
d. Jud review is undemocratic, because by declaring a legisl act
unconstitutional, it thwarts the reps of the people. It also shuts down laws
that have already gone thru complex lawmaking process.
ii. Functional
1. purpose of jud review is to act as checking mechanism & safety & help us
overcome the great risk of democracy. Majorities can be authoritarian & unfair…
 cts can break majority in favor of disenfranchised grps… cts aren’t just to resolve
disputes but also to help society be more fair.
2. could give judges much power
3. Ex: Properly enacted legislation’s presumed constitutional: US v Carolene
a. Upheld constitutionality of fed statute that prohibited interstate shipment
of “filled milk.” Regulatory economic legisl should be upheld as
presumably constitutional if any rational basis (here, product is impure)
b. * famous footnote 4: Judiciary should include people previously excluded
from democratic process. So scope of presumption of constitutionality
may be narrower when legislation:
i. appears to be w/in prohibition of Const or Bill of Rights
ii. is directed at religious or minority grps
iii. may restrict political process that could lead to repeal of
undesirable legislation
iii. Enforce democracy, such as:
1. To reinforce interests of victim/minority grps
2. Where majority feels threatened by minority to sweep it from power, so
judiciary’s needed to guard democracy
d. Dramatic exercise of jud power: Bush v Gore
i. Facts: a FL statute allowed manual recounts continually if machine screws up. Other
statute (“safe harbor” statute passed by a different, earlier FL legisl) said that results hafta
be certified in 7 days. FL Sup Ct tried to harmonize these statutes by looking at FL const,
which said votes are real important, so decided to go ahead & keep countin as long as the
Dec 12 deadline (3-4 days more) isn’t jeopardized. US Sup Court vacated & remanded FL
Sup Court…when FL Sup Court ordered hand recounts thru-out state usin pre-election
legislature’s standard to discern the intent of the voters, this is a disaster (Some counties
count pregnant chads, hanging chads, etc.)
ii. Held:
1. US Sup Court stayed (stopped) recount. FL Sup Court’s recount procedures used
arbitrary & disparate treatment of its voters. It didn’t use specific standards to
ensure equal application of using ballots to get to voters’ intentions. It’d take
much work to develop adequate statewide standards.
2. Concur (Scalia/Rehnquist/ Thomas): Used literalism & originalism. Were
previous tabulations & no claims of fraud. It wasn’t appropriate remedy for FL
Sup Court to order so many recounts in 64 counties on Dec 8 when deadline was
Dec 12. This isn’t typical case where we’d defer to state court on issue of state
law. Art II, Sct 1 says that electors shall be appointed by state legislatures. So
whatever FL legisl says, that’s what it is, end of story & end of judicial
involvement.
3. Dissent (Stevens & Ginsberg): Art II allows state legisl to be subject to jud review
by own state constitution, so it was approp for FL Sup Court to have appellate JD
over this matter. Fed judges don’t have special authority over state judiciary on
matters of state law. Though differing recount standards is indeed a problem,
state judges can indeed manage & adjudicate it, as they’re closer to the process
than US Sup Court is. Election loser is nation’s confidence in judge as impartial
guardian of rule of law.
4. Dissent (Souter & Breyer): Should remand to FL courts for em to develop
uniform standards to determine voters’ intent. FL courts can deal w/equal
protection claim.
5. Dissent (Breyer): Sup Court should try to avoid legal disputes that’d determine
Pres outcome. 3 USC §5 calls for political problems to go to Congress, not
courts. An elected Congress better expresses people’s will, which is what
elections are about.
6. O’Connor/Kennedy: did not sign any opinion. Reject the idea that “legislature”
can be read a single way. Agree with Breyer and Souter regarding equal
 protection, in that it was violated by the recount method. But must’ve thought
that FL court wanted to take advantage of possibility that any safe harbor chosen
by Sup Court could be challenged in Congress, & so further counting would be
futile.
e. 4 ways judges read text: (goin from #1 to 4 gives more power to judiciary & takes away from
another branch)
i. literalism (words have literal meaning)
1. used in Marbury
2. is like Scalia’s & Black’s position
3. gets to legitimacy of the text & doesn’t challenge judge’s decision. Consistent w/
democratic political theory
4. problem: tends to break down in const settings. They use general phrases on
purpose to capture general values (“unreasonable search & seizure,” “due process
of law”, etc) & not directives. If U stop at literalism then U either narrowly
confine judiciary or U hafta expand conception to what judge’s doing. Doesn’t
help judiciary make thinking in cases like Brown v Board, which went beyond
literalism.
ii. originalism/intentionalism (more sophisticated version of literalism: words are general &
don’t convey single isolated meanings but rather that the person who wrote em had sumn
in mind)
1. also used in Marbury
2. is like Scalia’s position
3. like literalism, gets to legitimacy of the text & doesn’t challenge judge’s decision
& is consistent w/ democratic political theory
4. problem: Framers disagreed on most things, it’s unclear who’s a Framer, &
original Const permitted slavery, only men & rich voting, etc.
5. problem: like literalism, may lead to judges being dishonest
iii. constructive intentionalism (doesn’t look for historical fact but rather imagines what a
hypothetical reas founder woulda intended the clause to mean)
1. problems:
a. unclear whether it means what a hypothetical founder woulda wanted in
1787 (which rolls back into originalism) or what he’d want in today’s
world (which is what judges typically look for now).
b. claims to be speaking for someone else when really speaking for yourself
– is very subjective
iv. interpretivism (words are like parentheses – they give U a range of possible meanings, &
judges must choose the meaning that most closely advances the purpose of the const text)
1. is like Brennan’s position
2. is like constructive intentionalism except used from the 1 st person & not a
hypothetical 3rd person
3. Problem: Where is the legitimacy for judges to engage in this?
f. Hydraulic nature of judicial reasoning
i. Shows judicial process as syllogism: judge is discoverer, not creator
1. first identifies a major premise—“governing rule of law”
2. then finds a minor premise—the facts
3. next makes conclusion: guilty/innocent; liable/not-liable
ii. Ex of this scheme: Marbury (because it asks if judge has power to plug in whatever
major/minor premise he wanted)
g. Review of state legislation: Martin v Hunter’s Lessee
i. Facts: Martin, a British subject, was heir to VA estate, but VA legislation confiscating
British loyalists’ property made title go to Hunter. Hunter tried to eject Hunter. US Sup
Court reversed Hunter’s win in VA ct, but VA court didn’t comply w/the reversal.
ii. Held: Sup Court has appellate JD over highest state courts on issues involving fed const,
laws, & treaties. Within its judicial power, US Sup Court has appellate JD whenever it
doesn’t have original JD. Const recognizes limits of state judges: they’re bound by const ,
 state interests might obstruct justice sometimes, state courts might interpret laws & const
difftly, & some final decisions must rest in US Sup Court.
h. Martin was extended to permit review of state court criminalinal judgments: Cohens v VA
i. Prerequisites to fed JD:
i. “Case or controversy”: Can’t give advisory opinions or decide moot cases.
ii. Final judgment: Sup Court will only review final judgment of highest state court
iii. Fed law issues: won’t review state law issues or determinations of fact, just fed law qs.
iv. Issue must be duly raised in state ct
v. Adequate, independent state ground: Sup Court’s only power over state judgments is
correctin em when they wrongly judge fed rights. Sup Court won’t review if there’s
adequate (case will come out the same way, regardless of how Sup Court feels about a fed
issue in the case), independent state ground to support judgment.
1. If decision looks like it rests mostly on fed law, Sup Court will assume state court
decided how it did because it believed it had to under fed law: Michigan v Long
j. 3 checking mechanisms inside the system of judicial review
i. political q (comes from w/in court): the notion that in construing texts, there are some
decisions beyond what judges could or should decide
1. either the text or task itself may say judges shouldn’t or don’t know how to decide
it
2. Courts can’t review procedures whereby Senate tries impeachments: Nixon v US
a. Facts: Former judge Nixon was convicted & sentenced, but wouldn’t
resign. Senate voted to convict him on impeachment, & he was removed
from office. Senate said that they pick select committee to hear
testimony, which’ll make recommendation. Then there needs to be a trial.
b. Held:
i. a controversy’s nonjusticiable if there’s textual commitment of
issue to a political dept or lack of judicial capability to resolve
it…& Art I, Section 3, Clause 6 says Senate shall have sole power
to try all impeachments (and “try” doesn’t require a judicial trial.)
“Sole power to try” lets trial be delegated to a committee; whole
Senate doesn’t hafta exercise that power.
ii. Other reasons why judiciary shouldn’t have role in
impeachments: court doesn’t represent people like legislature,
court’s too small in #, to avoid bias & get independent judgment,
court’s lack of finality & trouble creating relief, & impeachment
is only legislative check on judicial branch.
c. Concurrences (White & Souter): Senate can have full authority in
determining set of rules, but Court shouldn’t necessarily have no role.
(This approach may be less honest, as court deferring to Senate means
tacit approval, even if court disagrees w/Senate’s ideas)
3. Congress’s duty to determine whether a state’s government is republican is a
political q for Congress, not the courts: Pacific States Telephone & Telegraph
Co v OR
4. A challenge to a legislative apportionment of voting districts is not a political q
(rather, it’s whether state activity is consistent w/federal Const), so the fed courts
can address it: Baker v Carr
5. Foreign relations:
a. Not all controversies touching on foreign relations are beyond court’s JD:
Baker v Carr
b. Courts can’t resolve dispute b/w coequal branches of government – this
foreign relations issue is a political q: Goldwater v Carter (whether Pres
can terminate a treaty w/Taiwan w/o Congress’s approval)
6. Regulating military force qs require professional military judgments, for political
branches (legisl & executive) & not courts to resolve: Gilligan v Morgan
 7. Qs of delegates to be seated at convention are political, & convention itself should
resolve such intra-party disputes: O’Brien v Brown
ii. Art III constraints (come from w/in court):
1. ripeness
2. mootness
3. standing: issues when a judge can be pulled into court (ie environmental, $, issue
that’ll affect everyone)
iii. External check: legislative efforts to attack the subject matter JD of the court & take away
courts’ power (comes from outside the court – Congress)
1. Based on Marbury, which really held that appellate JD is modified so that it’s cut
back in certain issues, cuz Congress gave cts the power that is HAS TO deal
w/such cases & be pulled away from dinner.
2. So, if legislature can’t overrule constitutional power by an amendment (eg if it
can’t overrule Roe v Wade), it can simply destroy the court’s power to enforce it
by stripping court of power to hear case. Efforts for these JD-stripping bills have
been common in US history, esp for politically unpopular doctrines.
k. Congressional checks on judicial review
i. Arguments to justify such checks:
1. Essentiality: Is essential need for some jud review, as Art III, Sec 2 says Sup
Court shall have appellate JD in all other cases where it’s not original JD.
2. Equality: Efforts of Court to regulate on specific issues may run afoul of the Equal
Protection Clause.
3. Since Congress doesn’t hafta establish lower fed courts at all (Const sets up US
Sup Court), it has broad discretionary power to prescribe & limit their JD
ii. If Congress previously halted the Court’s JD on a matter, Court can’t hear such matters:
Ex Parte McCartell
1. Facts: after Civil War, Reconstruction Congress imposed military government on
many former Confederate states. P was held in military custody & argued that
military governmenternance of the South is unconstitutional. 1867 Act permitted
appeals to Sup Court when circuit courts denied apps for habeus corpus writs…
when circuit court denied his petition, P appealed to Sup Court. Congress then
abolishes the habeas corpus JD that’d allow the Sup Court to hear the issue.
2. Held: Sup Court gets JD from Const, subject to exceptions Congress makes. Sup
Court can’t inquire into Congress’s motives.
3. Analysis:
a. Case might be read to say Congress can take subject matter JD away from
Court simply to keep it from adjudicating certain type of case. But
modern reading is that case didn’t take power away from judiciary –
could still hear habeus corpus – so judicial review wasn’t established.
b. This case just abolished habeus corpus review that expedited process…a
cumbersome appeal to Sup Court was still possible.
c. Since case, Court’s established that legisl motive IS relevant to whether
government lawfully exercised its power. This case might not get
majority support today.
iii. Congress can’t use JD-stripping power on selective basis to compel courts to reach
unconst results in certain cases: US v Klein (Court struck down statute that stripped fed
courts of JD over cases where P relied on pres pardon to prove Civil War loyalty to get
government-seized property back)
iv. Other levels of political control Congress can use over courts, besides JD stripping
1. Congress can determine # Justices on Sup Court, thru Art III
2. Sup Court judges must be appointed by Pres & confirmed by Senate
3. Can abolish appellate JD of Sup Court, as it’s only awarded to Court under terms
Congress establishes. A portion of jud review (ie abortion issues) could be
removed.
4. Can cut out lower fed courts
 v. Sovereign immunity’s a check on judicial review. Ex: when courts can’t impose
monetary judgments on state (but can mandate specific performance).
vi. Art I, Section 6: Senators & Representatives shouldn’t be questioned in any other place
for any speech or debate in Congress. Also forbids criminalinal or civil trials against
Congress members for legislative acts
l. Executive checks on judicial review
i. Is a privilege that protects against disclosure of pres communications made in exercise of
executive power. Privilege for military, diplomatic, & sensitive national security issues
get most deference. Other pres communications are only presumptively privileged.
ii. Is no absolute, unqualified executive privilege of immunity from judicial review: US v
Nixon
1. Facts: Special prosecutor for Watergate got subpoena orderin Pres. Nixon to
produce tapes & records relatin to pres conversations & meetings.
2. Held:
a. Sep of powers doesn’t block courts from reviewin President’s privilege,
because it’s court’s duty under Art III to have constitutional government
balance & address this issue.
b. Balanced factors: Legit judicial needs (fair & complete presentation of
evidence in criminal trial) & protection of in camera inspection outweigh
needs for blanket presidential privilege (sep of powers) or protection here
(confidentiality).
c. There’s a core of executive activities that can be protected (executive
immunity exists, that is), but judiciary can decide limits on em. This
comes from Marbury. (Generally, courts have won the battle to decide
what their own powers are).
iii. Executive is not subject to review for political qs & military cases
iv. Ex-Pres can’t use executive immunity to prevent Congress from regulating use of
presidential records: Nixon v Administrator of General Services
1. Facts: Former Pres Nixon challenged law that made Administrator of General
Services take custody of his record, screen em, give back personal ones, &
determine scope of public access to ones they keep.
2. Held:
a. Control over materials remains in executive branch, which Administrator
of General Services is part of…so sep of powers isn’t violated. No unfair
interference here blockin executive from its duties.
b. Other reasons to allow judicial screening: significant historical interest in
such records (ie libraries), protection in screening process, & importance
of docs as evidence in litigation
v. Pres has absolute immunity from civil liability for his official acts: Nixon v Fitzgerald
1. Facts: whistleblower who lost fed job sued Pres, claimin his rights were violated.
2. Held:
a. Pres must decide on matters that arouse intense emotions, & couldn’t
function if he were subject to qs or trial on his motives. Possibility of
impeachment, public scrutiny, prestige desire, & desire for reelection are
incentives to avoid misconduct.
b. Only explicit Congressional acts could take away this Presidential
immunity.
vi. President could be sued civilly for unofficial acts he does (ie before or after coming into
office) unless he can show compelling reason otherwise: Clinton v Jones
1. Facts: Jones sued Pres Clinton for makin sexual advances to her when he was
government.
2. Held: Court can look to material of claim & see if it shields claim. Rationale for
immunity of Nixon v Fitzgerald is to enable such officials to do official functions
effectively, but this doesn’t support immunity for unofficial acts. A judicial &
executive interaction isn’t necessarily unconstitutional.
 vii. Immunity for other executive branch members:
1. Const doesn’t give executive officials express immunity, & doesn’t seem to be
implied immunity under case law.
2. But there’s qualified immunity for executive officials like presidential aids:
Harlow v Fitzgerald (this balances interests of injured citizens against public need
to protect discretion of officials).
3. Absolute immunity: can’t be sued even for egregious or intentional const
violations. Qualified immunity: liable only for violations of clearly established
rights a reasonable person would’ve known.
4. For exec branch members (but not pres), prevailing immunity depends on the
function bein performed when alleged misconduct happened.
C. Executive power
a. Pres can be denied ability to use lawmaking power independent of Congress to protect serious
national interests: Youngstown Sheet & Tube v Sawyer
i. Facts: during Korean War, steelworkers did nationwide strike after long negotiations.
Truman ordered steel mills to be seized & kept running, because of need for steel
production for ammo. Congress earlier gave Pres authority under Taft-Hartley Act to seek
injunctions against such strikes, but rejected allowing government seizures to prevent
shutdowns. Millowners & steelworkers challenge Pres order (likely fearin future
government encroachment into industry & economy)
ii. Held: Pres power to issue order must come from Const (but such orders should be given
by lawmakers, plus Art I Sec I says legislative powers go to Congress) or Congressional
Act (but Congress rejected such means.) Order was too far removed from war to justify
seizure.
iii. * Famous Concurrence (Jackson): Const gives branches separateness but interdependence.
Outlined 3 levels of Presidential power: (this cosmology works well for express
authorization, but weighing silence as implicit authority has problems of interpretation)
1. When Pres acts under express or implied Congressional authorization: Pres power
is at its max
2. When Pres acts w/o Congressional grant or denial of authority, & can only rely on
his independent powers (in other words, silence in absence of strong evidence one
way or the other): test of power depends on actual events
3. When Pres acts counter to express or implied will of Congress: Pres power is at its
minimum. Action in this case fell into this category…Pres has no legisl power
except for recommendation & veto.
iv. Note: court considered Congress’s silence as inaction, not authorization. Legal
significance of congressional silence can be shown by each side presenting evidence of
their interpretation, looking at factors like if Congress is busy, if Congress is aware of
what exec is doing, or whether Congress has previously authorized this & didn’t feel need
to again do so.
b. Presidents have issued Executive Orders relatin to: organization of executive branch, use of fed
property, & terms fed government will enter contracts on.
c. Line Item Veto Act illegal since gives Pres unilateral power to change text of enacted statutes:
Clinton v NY
i. Facts: Line Item Veto Act gave Pres the power to cancel Congressional enacted provisions
regarding budgets, direct spending, or tax benefits. If exercised, Pres must determine it’d
reduce deficit, not impair government functions, & not impair national interest, plus give
Congress 5 day notice.
ii. Held:
1. Veto would be based on same conditions evaluated by Congress when it enacted
those statutes. Pres is rejecting Congress’s policy judgments & substituting his
own.
2. veto’s illegal also since veto clause doesn’t allow veto of a piece of a section, only
the whole section. Pres lacks power to line item veto, & Congress lacks power to
give pres power to line item veto.
d. One House Veto
i. Thry of it: Congress says administrative agencies should be kept on leash so they don’t
make mandates on own, but Sup Court says agencies are enforcing old laws (passed by
Congress) when it makes regulations.
1. that’s what INS v Chadha says
2. but Humphrey’s Executor says agencies do make law (are quasi-legislative).
e. Power to appoint & remove officers
i. Cases generously allow hybrid operations to function
ii. Thry of unitary exec: helpers & Pres work together as 1 unit, & helpers act not just for the
Pres, but as the Pres. Buckley, Bowsher, & Myers are consistent w/view of unitary exec.
iii. President’s executive power includes removing exec officers even when appointment was
subject to Senate’s consent. Since selection of officers is crucial to executive power, Pres
should be able to remove officers at his choice: Myers v US
iv. Congress can limit grounds for President’s removal of officer of quasi-legislative & quasi-
judicial agency: Humphrey’s Executor v US
1. Facts: Congress wanted to limit grounds for removal of Commissioner of Federal
Trade Commission. New pres is elected but policy is made by people appointed
by previous president who may have had different political views. FTC is a
quasi-legislative & quasi-judicial agency created by Congress to regulate fair
markets – they make, enforce, & resolve laws so don’t fit into tripartite scheme of
gov.
2. Held: Myers only applies to purely executive officers. Congress can have quasi-
legislative & quasi-judicial agencies act independently of executive control.
3. Used functional approach, since FTC head does functions of various branches.
Was functional compromise: President gets to appoint; Congress gets back power
to remove.
v. Congress can’t unilaterally appoint US officers who’ll exercise executive powers:
Buckley v Valeo
1. Facts: Appointments Clause grants appointment power to Pres. But in
amendments to Federal Election Campaign Act, Congress created 8 member
commission, 6 who vote & 4 of those who’re appointed by Congress.
Commission members would do enforcement & administrative stuff.
2. Held: commission members are officers so must be appointed via Appointments
Clause. Congress can’t get around that thru using Necessary & Proper Clause
(which grants broad powers - but not for unconstitutional acts). Congress can
only appoint commission members who do investigative work, not enforcement &
administrative work.
3. By holding Congress can only make law, can’t enforce it, case is flip side of
Youngstown – is consistent.
vi. Congress can’t assign to Comptroller General function of determining how to cut fed
budget: Bowsher v Synar
1. Facts: Deficit Control Act enacted to get fed budget deficit to 0. Commission
directors would calculate reductions & report findings to Comptroller General,
who’d decide needed spending reductions. Then Pres would mandate such order
unless Congress otherwise met the deficit goal.
2. Held: Comptroller General uses independent judgment & Pres must comply w/it,
so that officer was given executory power. But since Congress can’t execute
laws, it can’t grant to officer under its control the power to execute laws. And
Buckley says Congress can’t appoint, so can’t remove, a member from executive
branch.
3. Seemed to use “formal” sep of powers analysis, requiring rigid assignment of
exec, legisl, & jud functions to their corresponding government branches w/no
cross-branch interference.
f. Congress may allow judicial appointment of independent counsel to investigate & prosecute fed
criminal offenses: Morrison v Olson
 i. Facts: Ethics in Government. Act provided for independent counsel to be appointed &
prosecute government officials for fed criminal violations. Congressional committees
oversee independent counsel’s conduct.
ii. Held:
1. Though the independent counsel performs executive functions, he’s really an
inferior officer because: he may be removed from higher exec branch official,
policymaking & administrative authority’s limited, & office is limited in JD &
tenure. Appointments Clause allows Congress to let any branch appoint inferior
officers. So, avoided rigid classifications of whether an officer’s executive
official or not.
2. What’s more important is that President’s ability to function isn’t impeded.
Though Attorney General can remove independent counsel by showing good
cause, this good cause restriction didn’t go too far because it didn’t impede
President’s ability to function.
3. No sep of powers problem because no exec powers are taken away by jud or legisl
branches & the exec still can supervise the independent counsel (since the
Attorney General can remove independent counsel by showing good cause).
g. An act can let judges can have executive or administrative duties: Mistretta v US
i. Facts: Sentence Reform Act created Sentencing Commission to make guidelines for
sentencing ranges. Is an independent commission in jud branch where Pres appoints
members.
ii. Held:
1. Judges can have rulemaking authority w/in twilight area (Jackson concurrence in
Youngstown)
2. Didn’t give judges responsibilities that belong more to another branch, give em
much authority, or threaten its impartiality.
h. Leasing contract of airports from fed government not allowed because it gave 9 Congress
members in the review board veto power over airport management: Metropolitan Washington
Airports v Citizens (would lead to expansion of legisl power way beyond its const role)
D. Legislative power
a. Delegation of rulemaking power
i. Congress can’t delegate legislative powers to another government branch: Mistretta v US
1. Facts: Sentence Reform Act created Sentencing Commission to make fed
sentencing guidelines…is independent judicial commission w/members appointed
by Pres.
2. Held: upheld act, because commission is truly independent & didn’t increase
power or threaten the impartiality of jud branch.
ii. But Congress can delegate rulemaking power to executive agencies: Yakus v US
1. Facts: Congress delegating to exec branch Price Administrator the authority to
establish max prices & rents to stabilize prices.
2. Held:
a. Such delegations are upheld as long as Congress gives intelligible
principle that rulemakers must follow. Here, was stated objective,
specified means, & standards for guidance.
b. Is practical government necessity for such delegations.
b. Legislative vetoes
i. Is when Congress overrides exec action pursuant to legislation, thru provisions in the
legislation.
ii. Congress can’t lay out policy at level of detail that it wants, so it delegates to executor
broad policy judgments. But Congress can retain 2 types of power:
1. ultra-virus power: to stop executive agency from promulgating something that
Congress thinks exceeds their power
a. problem: is dangerous threat to sep of powers (it’s the judiciary’s job to
interpret law and to decide whether delegated authority is being abused)
 2. policy power: stop executive agency from promulgating something that Congress
thinks is stupid policy, though policy is w/in delegated authority
a. problem: gives Congress unlimited power to make rolling statute.
iii. Problems:
1. This one-house veto (that Congress uses by givin agency broad power, then
allowin implementation only if it’s good law) to retain control is problematic.
Court says this is inherently what judiciary does, and Congress can’t usurp
judiciary’s power.
2. also may be better way, by just draftin statutes more narrowly.
iv. 3 args:
1. Technocratic: world is so complicated that we’re better off leaving
implementation to agency with expertise. Policy power is delegated to
technocratic institutions that can then carry out the policy. Strong gov
intervention is favored.
2. No choice: Congress can’t do any better than it does
3. Political: the number of constituents will make it impossible to act at all if statutes
too broad…are inevitable conflicts. Conservatives argue for this model, sayin that
Congress should make policy judgments – it should discipline, not delegate.
v. Congress can’t use legislative veto to oversee delegation of authority to exec branch: INS
v Chadha
1. Facts: At INS deportation hearing, Attorney General suspended P’s deportation.
Immigration & Nationality Act said either House of Congress could veto
suspension of deportation, & House of Reps ordered P to be deported.
2. Held:
a. Every bill must be passed by both Houses & approved (or his veto
overruled) by Pres. Const lists only 4 exceptions for when a House may
act alone: impeachment, trial after impeachment, ratification of treaty, &
confirmation of pres appointment
b. Legislative veto may be efficient, but that doesn’t justify violating sep of
powers.

III. Federalism – Vertical Fragmentation of power

A. Intro
a. Is no federalism clause in Const. No clause or provision defines what is national & what is state.
Is there sumn unworthy of bein called a state (that’s the riddle of 10 th A).
b. History: (the power expands – when there’s urgency - & contracts)
i. 3 stages of impetuses for uniform national standards:
1. Depression in 1930s: was a danger of the race to the bottom (each competitor in
business & states would drive down wages, safety rules, product guarantees to cut
costs), so there’s tremendous pressure for a national rule on these issues to govern
our economy (NLRA, wage standards, etc).
2. WWII: government wanted efficiency and uniformity for national survival.
3. 1940s thru Cold War, fed government had strict federal standards. Were
centralizing tendencies. Wanted single most efficient rule in every way.
ii. 1989, Berlin Wall goes down, & national security threats go down & so there’s a long
time of prosperity – so there’s not such a need (either externally [security threats] or
internally [econ probs] in the US) for centralism.
c. Federalism can act as sword (by minorities appealing to larger powers): Ways democracy can deal
w/ less popular or less powerful groups:
i. say: too bad – must deal w/majority’s rules
ii. say: go to the courts
iii. say: you can appeal to a larger majority (out of your locality)…ex: Civil Rights
Movement allowed appeal not only to courts but also to a larger majority by setting up
national standards such as Title VII
 d. Federalism can also act as shield (by not letting national majority impose its standards onto
everyone, thru letting some local standards rule).
B. Interplay among enumerated powers, necessary & proper clause, & 10 th A
a. As Const sets up, the national government hasta justify its power by some appeal to text – is no
inherent national power. The vast bulk of stuff doesn’t hafta be explained (states don’t hafta
explain their power). Until Congress acts, states don’t hafta say where their power comes from.
b. That sets off 3 or 4 sources of text:
i. Enumerated powers
1. Ie bankruptcy, coin money, regulate interstate commerce thru Commerce Clause
2. Those are powers that Congress has which are explicitly found in Article I
3. But if we stopped there, we’d have a small national gov. They leave out most
national activity.
ii. Necessary & proper clause
1. got tacked onto the enumerated powers, in Art I, §8. doesn’t grant new,
independent power – just makes enumerated powers effective.
2. gives Congress power “To make all Laws which shall be necessary & proper for
carrying into Execution the foregoing Powers, & all other Powers vested by this
Const…”
3. unlike enumerated powers, these are implied
4. ex: Bank of the US
a. Congress incorporated it in 1791, as a private banking business. Was
unpopular because caused many state banks to fail.
b. Congress can incorporate a bank under implied powers: McCulloch v
MD
i. Const can’t have details of all ways to carry out all powers
ii. Necessary & Proper Clause enlarges the powers vested in
government & lets Congress have discretion in choosin best
means to perform duties for people. Bank of the US is useful
instrument for fed government’s fiscal operations.
iii. Creation of a corporation is implied as incidental to enumerated
powers (such as, fed government can collect taxes, borrow $, &
regulate commerce)
iv. So, allowed Bank of the US under necessary & proper clause.
iii. 10th A (inherent state power): says that power that isn’t given to the national gov is
retained by the states
iv. Non-textual inherent state power - may be a 4th source
1. Ex: A state can have mandatory retirement of its judges at certain age: Gregory v
Ashcroft
a. Facts: A state judge didn’t wanna retire at 70, & said forcing him to
would be a violation of the Age Discrimination Act.
b. Held: avoided the const q by saying that judges are exempt. Construed
the fed statute to create an exemption for policy-making officials,
including judges.
c. Fed legislation must be based on powers the Const granted to fed government
i. Ex: Congress has no power to irrigate non-fed lands: Kansas v CO
ii. 1 possible exception: foreign affairs
C. Is there an irreducible minimum of state autonomy?
a. Federal wage legislation doesn’t violate 10th A. Ex: FLSA
i. 1st case: Is applied to teachers, hospital workers, & prison guards – all states hafta require
time & a half for overtime under the FLSA. But states say this is ridiculous because they
don’t wanna pay time & a half to those workers because they only have a finite amount of
$. Enumerated powers arg loses: MD v Wirtz
ii. 2nd case: held that Congress can’t enforce FLSA in areas of traditional government
functions (here, to subway workers), because it violated 10 th A & took state financial
autonomy away: National League of Cities
 iii. 3rd case: Congress can enforce minimum wage & overtime requirements under the FLSA
to a local government’s transit authority: Garcia v San Antonio
1. Under Hodel, need 4 conditions for state activity to be immune from fed
regulation, & 3rd condition (that fed statute impair traditional government
functions) is at issue here. But, are really no “traditional” government functions.
That distinction is discarded.
2. Overruled National League of Cities
3. FLSA doesn’t destroy state sovereignty or violate Const, & states can protect
selves thru Senate representation, fed aid, & exemption from many fed statutes.
States retain lots of power that the Const doesn’t already divest them of.
b. Is arg that Senate protects states’ rights. But that’s a weak arg because 17 th A says the state
legislatures will NO LONGER choose senators & require that senators are elected by direct
popular vote.
c. 2 theories of statutory instruction
i. Inclusio unis: if it wasn’t included, we must have meant to leave it out
ii. Equity of the statute: analogous provisions as well as what’s specifically written are all
included in the statute
iii. Ex: homicide statute says: he who commits homicide is eligible for death penalty.
Inclusio unis camp will say law is precluded from applying to women because of use of
“he.” Equity of statutes camp will say women ARE included by analogy.
d. Congress may require state agencies to consider particular regulatory approaches: Federal Energy
v MS (upheld act that state agencies consider a fed agenda because Congress coulda preempted it
& the states aren’t told how to decide on those issues)
e. Congress can’t compel states to enact a fed regulatory program: NY v US
i. Facts: act required states w/o disposal sites to create sites or use other states’ sites, or else
would be liable for nuclear waste generated in the state.
ii. Held: Congress can only create incentives for states to adopt fed programs but can’t make
states enact plans.
f. Forcing state officials to perform fed functions violates state autonomy: Printz v US
i. Facts: Congress passes gun control law (Brady Act) & wanted local sheriffs to do
checking.
ii. Held: is violation of state autonomy.
1. It directs individuals, but in their capacities as state agents.
2. Balancing interference w/state autonomy & policy usefulness of act isn’t allowed
when sep of powers is violated.
g. The fact that Congress can’t compel state organs to work for it doesn’t mean Congress can’t bribe
them. (Sup Court has upheld Cong givin states money to maintain & build roads in exchange for
enforcing certain road rules).
h. Info that’s an article of commerce allows fed government to regulate states’ control over it: Reno
v Condon
i. Facts: Congressional act barred state depts. from disclosing personal info needed for
drivers license or registration)
ii. Held: upheld. Act didn’t make states regulate own citizens or regulate states, but rather
the states as initial suppliers of the info.
i. A state can’t limit # of terms a Congress member can serve: US Term Limits v Thornton
i. Facts: AR voters adopted state const amendment that would limit some US Congressional
candidates’ names from bein on ballot
ii. Held:
1. the people (not the states) should choose who they want to govern them
2. states have never had original right to qualify Congress membership, so can’t get
that right thru the 10th A. Const is only source of qualifications, & states have no
power to impose new restrictions on term limits.
3. restriction, albeit not a total barrier to running for office, is still unconst because it
indirectly denies candidates full const rights to run by makin it much harder to
win.
 iii. Note: if you view Congress members as members of a national government & their
principal affinity lies with national gov, then national gov rules should govern at the
exclusion of state rules. But if you view Congress members as reps of individual states
representing their state’s rights, then states should be able to regulate.
D. Commerce clause
a. As authorization
i. Commerce clause: “The Legislature of the US shall have the power…to regulate
commerce w/foreign nations, & among the several States.”
ii. States have power over commerce w/in their boundaries. Fed & state power are
sometimes concurrent. Fed government needs power to regulate goods, tax goods, break
down commercial barriers b/w states, & make sure debts are fulfilled.
iii. Commerce is essentially anything that crosses state lines involving payment: Gibbons v.
Ogden
1. Facts: NYC grants Fulton a monopoly on operating steamboats, & Fulton assigns
rights to Ogden. Gibbons wants to run competing ferry service b/w NY & NJ –
claims he has license to do so under fed statute regulating interstate waters.
2. Held: adopts broad reading of Commerce Clause. Commerce includes transport
of either goods for sale or persons for hire across state lines.
iv. States can regulate interstate insurance business since issuing insurance policies isn’t a
commerce transaction, nor are insurance contracts articles of commerce: Paul v VA
v. States can regulate manufacture of goods since manufacturing & production aren’t
commerce: Kidd v Pearson
vi. Fed government can regulate ship operating only w/in 1 state, if that ship was involved in
transporting goods across states: The Daniel Ball
vii. Fed government can prohibit undesirable activity if it moves across state lines.
1. Since lottery tickets cross state lines, fed government can regulate em: The
Lottery Cases
a. Facts: La had lottery through post office via mail & in newspapers in all
of US. Congress forbids transportation of lottery tickets across state lines,
for moral goals.
b. Held: Congress power to regulate includes power to prohibit.
2. Congress can prohibit goods harmful to interstate commerce itself, like diseased
animals
3. Congress can prohibit harmful items, like misbranded articles
4. Congress can prohibit noncommercial items that’re evil activities, like stolen
goods
5. Mann Act 1916 prohibits interstate transportation of women for prostitution.
viii. Cooperative federalism=when states use federal rules to establish what they want (ie 45
states wanted to abolish lottery and used fed power to reinforce state police power.)
ix. Coercive federalism=when fed gov imposes rule on state despite protest by state (ie NV
can’t advertise its prostitution on tv).
x. Commerce clause is implicated as long as there’s some affected interstate commerce (“a
close & substantial relationship to interstate commerce”): The Shreveport Rate Cases
1. Facts: Interstate Commerce Commission sets railroad rates to travel b/w
Shreveport & McAllen. TX sets rates from Shreveport to Dallas. It costs more to
ship from Shreveport to McAllen than from Dallas to McAllen (even though
shorter distance).
2. Held: though an intrastate phenomenon, it affected interstate lines by pricing
intrastate lines much cheaper than competing interstate lines. Because the charges
discriminate against interstate commerce, interstate commerce is affected & thus
Congress can control charges w/in state of the interstate carrier.
3. Note: Other cases relied on Shreveport. Ex: Congress can control local pracitices
when it reasonably fears they’ll constitute burdens on interstate commerce:
Stafford v Wallace
 xi. Congress must have commerce clause license to regulate the direct, underlying behavior
and not just get away with regulating the end product: Hammer v. Dagenhart
1. Facts: Fed statute forbids any merchandise that was produced by child labor to
cross state lines – was morals legislation to prevent exploitation of children.
Child labor is cheaper, so state that uses it will be able to market goods at lower
prices & will pressure neighboring state to lose business or also use child labor.
2. Held:
a. Rejects Lottery Cases and Shreveport Rate Cases & the effects test.
b. Cut back trend of expanding fed power to regulate commerce
c. Fed government here can’t control this because the goods themselves are
harmless, plus the activity took place wholly intrastate.
xii. Congress can only regulate activities w/direct effect on commerce
1. Ex: Congress can’t regulate hrs, wages, employment conditions of national
industry: Carter v Carter Coal
a. ‘Direct’ means proximate, w/o any intervening condition
b. Employment is for production, not trade, of goods. Employment
relationship’s a local matter.
xiii. New approach: Congress can regulate any activity, interstate or intrastate, if it has
appreciable effect on interstate commerce: NLRB v Jones & Laughlin (Q: HOW IS THIS
ANY DIFFERENT FROM WHAT SHREVEPORT RATE ALREADY SAID???)
1. Facts: corporation fired union activist employees, committing ULPs, but claimed
NLRA didn’t cover how manufacturing is conducted within state’s borders.
Corporation shipped 75% product outta state…was 4th biggest US steel producer.
2. Held:
a. “Affecting commerce” in NLRA means burdening commerce or tending
to lead to labor dispute burdening commerce. Acts that are intrastate
when considered separately but have “close & substantial relation to
interstate commerce” can be regulated by Congress.
b. Labor strife at plant could burden whole interstate operation of the
corporation & other interstate commerce because steel is basic industry.
3. Note: once Commerce Clause is implicated, Congress can regulate every single
antecedent (underlying) behavior
4. Further application:
a. NLRB v Friedman-Harry
i. Facts: small clothes manufacturer, producing <.5% men’s clothes
in US & w/only 800 of 150,000 employed in industry
ii. Held: Congress could still apply NLRA, because of past strike
disaster in that industry, importance generally of clothes industry,
& interstate shipments
b. NLRB v Fainblatt
i. Facts: small NJ shop where 60 employees did work for NY co
ii. Held: lo volume of business irrelevant, because industry overall
has lotsa interstate commerce
xiv. Congress can establish & enforce wage & hr standards for manufacture of goods for
interstate commerce: US v. Darby
1. Facts: FLSA set max & min wages for employees who made goods for interstate
commerce. Manufacturer didn’t do the shipping.
2. Held:
a. Congress can exclude interstate shipment of goods pursuant to public
policy, when goods are harmful to public health, morals, or welfare.
b. Can use any appropriate means of accomplishin that policy.
c. Overruled Hammer
3. Note: case goes considerably beyond reach of original New Deal theory
(Gibbons –as soon as good crosses border, Congress can regulate).
 xv. Congress can regulate individual home production of wheat based on substantial effect of
aggregate of activity: Wickard v. Filburn
1. Facts: Agricultural legislation limited amount of grain farmers could grow in
effort to regulate supply to get prices up. Farmer claims he grows corn in a little
patch to sell some, feed his pigs, & corns stay within confines of his farm, but was
been sanctioned for growing unlicensed corn.
2. Held: eventually, in a chain of events, farmer’s behavior impacts national
economy. It substitutes for purchases on open market so is far from trivial.
3. Note: Gov just needs to show aggregate behavior affects IC, doesn’t need to
single out specific behavior.
xvi. Control over transactions regarding intangibles:
1. Congress can regulate interstate insurance business, even though each individual
sales contract may be local: US v Southeastern Underwriters
2. Congress can regulate securities because owning securities has clear relation to
interstate commerce: North American v SEC
xvii. Civil rights
1. Congress passes public accommodations statute to get rid of apartheid (statute
really has nothing to do w/econ but rather w/soc equity).
2. Congress can prohibit racial discr by private motels that take outta state business:
Heart of Atlanta Motel v. US (discr burdens interstate commerce, esp since it was
biggest motel in ATL)
3. Congress can prohibit racial discr by restaurants that take outta state business:
Katzenbach v. McClung
a. Facts: restaurant sold some foods that came from outta state.
b. Held: irrelevant that food had “come to rest”…the discr led to sales of
fewer goods, thus fewer purchases by restaurant of food, & hindered
interstate travel by blacks who had few places to eat.
xviii. Congress can protect environ thru restrictin surface mining on farmland: Hodel v Indiana
(though surface mining affected .006% of US prime farmland, amt of corn ruined was hi)
xix. So, case after case, Sup Court defers to Congress’s vision to regulate national economy.
Modern cases show limits to commerce clause, in social behavior settings.
1. Congress can’t prohibit firearm possessions in school zones: US v. Lopez
a. Facts: all 50 states prohibited guns in school, & some made it
misdemeanor. Congressional act made it heavy fed felony.
b. Held: 3 categories of activity are w/in Congress’s commerce power:
i. Interstate commerce channels (irrelevant here)
ii. Instrumentalities, persons, things in interstate commerce (also
irrelevant here)
iii. Activities w/substantial relation to interstate commerce (it’s too
tenuous a link to say violent schools disrupt educ, lead to less
productive people, & thus affect interstate commerce)
2. Even if evidence that there may be effects on interstate commerce, Congress m:
US v. Morrison
a. Facts: Congress passed Violence Against Women Act, providing remedy
for victims of gender-motivated violence. P sued under act for fellow
student’s rape of her.
b. Held:
i. Unlike in Lopez, here Congress did conclude there are serious
effects of rape on interstate commerce. But that doesn’t mean it
really has such effects.
ii. Would also lead to slippery slope of Congress regulatin all crimes
as long as they effect employment, production, transit, or
consumption.
xx. In sum, 4 possibilities:
1. Exclusive federal authority (fed preemption): commerce, foreign relations
 2. Concurrent authority: commerce
a. Supremacy Clause in Const: If there’s direct conflict b/w state & national
laws, federal law will prevail
b. But states can set more stringent standards on an issue if Congress just
sets min standards.
3. No authority: constitutionally protected rights, e.g. freedom of speech
4. Exclusive state authority: school, guns, domestic violence
b. As prohibition (Dormant Commerce Clause) – when there’s no fed regulation on point
i. Why it’s called dormant commerce clause: early on in our history, Sup Court decided that
affirmative grant of power to Congress to regulate interstate commerce carried within it an
implicit limit on power of states to regulate interstate commerce. That is, dormant
(reserved) in allocation of power to Congress to regulate interstate commerce is the
inherent notion that states’ power to regulate interstate commerce is limited.
ii. 2 visions of commerce power
1. Economic Vision (primary vision): the point of giving Congress commerce power
was that economic barriers b/w states (embargoes, tariffs) created economic
efficiencies & hurt national economy. Congress given power to create free-trade
zone in US. Vision of economic union and promotion of prosperity.
a. Yet, Darby suggests that courts will let Congress use its power for
purposes other than maximization of economic welfare (here, to suppress
immoral conditions)
2. Political vision: Constitution creates conception that states & their citizens must
view selves as part of 1 political union. Certain practices (retaliatory taxes) are
inconsistent with this idea, and national government is being given power to
service this kind of political union.
a. Yet, some kind of econ inefficiencies may still be allowed under political
vision, depending on what the political vision is
iii. When Congress hasn’t acted, states can regulate local transactions that affect interstate
commerce but can’t unreasonably burden interstate commerce
1. Ex: Interstate commerce is exclusive fed power, & though states can inspect
goods for health, they doesn’t come from power to regulate commerce: Gibbons v
Ogden
2. If there was mostly concurrent power over commerce, fed power would expand &
states’ power would restrict, so a long time ago there was exclusive fed power
over commerce. Eventually, became understanding that powers should be treated
as concurrent. Still, fed government has gained more political power under
commerce clause thru-out the century
iv. When Const was formed, were 3 examples of what Congress was supposed to eliminate:
1. tariffs on goods shipped from one state to another
2. embargoes on goods made in other states
3. retaliatory taxes (state A would tax goods from state B, & state B would do that to
state A.)
v. States may have tax subsidy to benefit in-state producers, maybe because it lays costs out
among taxpayers.
vi. State can regulate small creek so as to protect health & property values, if Congress hadn’t
already acted on it: Wilson v Black-Bird Creek
1. Facts: state let private party build dam over small creek to prevent a nuisance, but
it interfered with navigable waters.. Willson’s vessel – licensed under fed law –
broke dam. Congress hadn’t passed act on dam.
2. Held: states have power to regulate nuisance matters.
vii. Congress can let states regulate primarily local commerce aspects: Cooley v. Board of
Wardens
1. Facts: PA law required ships usin Philly port to accept local pilots. A
Congressional statute provided all ports to be regulated w/the existing laws of the
states.
 2. Held:
a. A local subject is best handled by the states, to regulate accordin to local
needs.
b. If commerce power was exclusive, then Congressional act couldn’t give
states power to regulate. But the Congressional act doesn’t require
exclusiveness on this subject. Congress’s exclusivity on subject wasn’t
affirmed or denied.
viii. Congress may validate state laws over commerce that, in absence of such consent, would
violate Commerce Clause
ix. Purpose & effects
1. Local law that has protectionist purpose (discriminatory… the law is made to
disadvantage outta staters in their competition w/in-state citizens…goes against
political idea of union) is unconst & may be struck down
2. Local law w/o such a protectionist purpose, but w/detrimental interstate economic
effects, also may be unconstitutional
a. Ex: Philadelphia v. NJ
b. But, there’s uncertainty whether effects alone should make law unconst.
3. Neg. effects can be used as evidence (ie Hunt v Washington State Apple—shows
NC law is helped while Washington apple industry’s hurt), but not to simply say
that the law must have a protectionist purpose (ie MN v. Clover Leaf Creamery)
4. Local law that discr against outta state interests will be very suspect unless state
can prove no protectionist interest.
x. State laws to protect local, public interests w/incidental effects on interstate commerce
will be upheld, unless burden’s excessive compared to local benefits: Pike v Bruce
Church
xi. Lotsa controversy over if the Court should balance burden on commerce vs local interest
xii. A state may impose regulations to promote health, but not to assure wealth: Baldwin v
GAF Seelig
1. Facts: NY law prohibited the sale in NY of imported milk bought outside the state
at lower prices. It was to stabilize milk supply, keep farmers working, & keep up
milk quality.
2. Held: A state can’t protect its producers against cheap, outta-state comp even if
it’s to ensure adequate, safe supply of an essential commodity. Can’t directly
regulate prices so as to indirectly affect health.
xiii. State statute that burdens interstate commerce & has valid purpose must actually achieve
that purpose to be upheld: Hunt v Washington State Apple
1. Facts: NC statute required containers of apples transported into state bear only the
USDA grade or no grade. NC refused to let Washington growers’ apples in,
which bore Washington grades, yet those apples were higher grade than USDA.
2. Held: statute doesn’t further NC’s goal to protect against deception, esp since
allowing no grades couldn’t clear up confusion. Statute both burdens &
discriminates against Washington apple sales. Is less discr alternative available
(allow state grades on containers).
3. Note: mere disproportionality of effects of law alone on disparate interested
groups doesn’t deem law unconstitutional. Court must believe there’s
protectionist purpose.
xiv. Court may examine evidence to see if state’s interest in safety is substantial enough to
justify burden on commerce: Kassel v Consolidated
1. Facts: Iowa prohibited use of most 65-ft double trailers on its highways.
2. Held:
a. Court must balance state vs commerce interests, & state can’t simply
invoke health or safety interest to avoid commerce clause attack.
b. States usually get special deference for highway safety laws, but burden
here (states would hafta drive around IL or detach trailers) outweighed
 safety interests (since the long double trailers weren’t much less safe), so
law struck down.
xv. When state law significantly burdens interstate commerce, it must meet heavy burden to
justify its interests:
1. Bibb v Navajo (non-discriminatory IL safety regulations regarding truck
mudguard types were struck down. They’d affect commerce because other states
used different flaps & would hafta go around IL, plus neither mudguard was really
safer.)
2. Southern Pacific v AZ (AZ law restricting # of cars on trains was struck down.
Burdened commerce because trains need national uniformity, plus didn’t reduce
accidents so much, so the national interest in free commerce outweighed the
state’s benefits in safety.)
xvi. State can exclude a type of commerce if it totally prohibits it by all means: Breard v
Alexandria
1. Facts: City prohibited door-to-door selling when not invited, & convicted seller of
national mag subscriptions from selling door-to-door.
2. Held: purpose of protectin privacy is valid & not thru over-burdensome means.
Are also other ways of sellin D’s mags.
xvii. A local statute w/valid purpose that discriminates against interstate commerce will not be
upheld if there are nondiscriminatory & effective alternatives: Dean Milk v Madison
1. Facts: City of Madison prohibited milk sales unless processed at plant w/in 5 mi
of downtown Madison, w/Madison authorities inspectin it.
2. Held: can’t discr against interstate commerce even for health reasons if there are
better alternates, such as US Public Health Service inspections or use own
inspectors to rate outta town plants (& charge those plants for the inspections).
Too much protectionist purpose for law to stand.
3. Test: When statute has effect of discriminating against out of state commerce, it
has the burden of demonstrating
a. a very important purpose and
b. only way to effect this purpose is to stop flow of goods from out of state
4. Note: analysis is same whether it’s city or state (if city ordinances got more
leniency, states could negotiate with cities to protect their citizens’ own interests)
xviii. State can’t tax both in-state & outta-state dealers, then give tax proceeds only to in-state
dealers: West Lynn Creamery
1. that’s like a protective tariff, because will make goods from outta state more
expensive
2. has discr purpose & effects
xix. State can’t give property tax exemption for charitable groups but withhold exemption
from such groups operated mostly for non-residents: Camps Newfound/Owatonna
xx. State can’t suppress interstate shipment of local products to protect health: HP Hood v Du
Mond
1. Facts: NY law required milk handlers to get license before opening depot. NY
was trying to hold the milk in the state so that the price of milk would remain
stable. MA milk handler who already had 3 depots in NY couldn’t get license for
new depot.
2. Held:
a. Admitted purpose & the effects were for purely commercial interests.
Can’t burden interstate commerce just for commercial interests even in
interest of health.
b. Can’t close off free access to the mkt or freedom of choice – US is econ
unit.
xxi. A state’s interest in maintaining its reputation for hi quality goods won’t justify law
prohibiting shipment of produce out of state for packaging: Pike v Bruce Church
 1. Facts: AZ required all fruit grown in AZ to be packaged there so they can put
name & address of people who grew it right on fruit. AZ citrus industry serviced
the elite market. TX & Mexico said they could pack the fruit more cheaply.
2. Held: Was illegal job protection plan.
xxii. A state law that doesn’t on its face discr against interstate commerce is allowed even if it
shifts industry mostly in state: MN v. Clover Leaf Creamery
1. Facts: MN bans non-returnable plastic milk containers but allows pulp wood non-
returnable containers (which MN makes a lot of). Claimed environ purpose for
ban, for only pulpwood deteriorates over time.
2. Held: state law upheld.
a. Neutral on its face b/w in state & outta state interests. No reason to
suspect it’ll esp. help MN or hurt other states (ie many plastic producers
are in MN & will be hurt).
b. If protectionist purpose even exists, legitimate environmental purpose
explains law better than protectionist purpose. The burden on interstate
commerce is not clearly excessive in relation to local benefits.
xxiii. Constitutionality of Law on Its Face
1. Laws that on their face discriminate (ie thru racial classifications) or distinguish
out-of-state or in-state economic interests will be very suspect (& subjected to
strict judicial scrutiny) unless state can satisfy court (as in Maine v. Taylor) that
those laws do not have a protectionist purpose.
a. Are exceptions: Usin racial classifications can be ok after racial uprising
in prison
2. Laws that are neutral on their face but seem to have underlying protectionist
purpose are also unconstitutional
3. Laws which use
xxiv. Environ regulations
1. A state law is allowed when the introduction of something itself raises environ
probs: ME v. Taylor
a. Facts: ME prohibited importation of live baitfish into state, because
parasite comes outta baitfish & causes environ problems.
b. Held:
i. On its face, distinguishes b/w in & outta staters
ii. Yet, is legit purpose of environ concerns, & no less discr means
to protect against the parasite were available. A state doesn’t
hafta develop new, unproven protection means. Not a purely
protectionist purpose here.
2. State can’t prohibit importation of waste based only on source of origin:
Philadelphia v NJ
a. Facts: NJ law prohibited wastes into state, to protect health.
b. Held:
i. Despite what NJ’s purpose is, this has discr effects to other states.
ii. Problem is shared by all. No valid reason was shown for the
discr. So here, there’s a protectionist purpose (reason this case
comes out different from ME v Taylor)
iii. NJ’s law isn’t a quarantine law (which would be out of commerce
clause reach). Quarantine laws prevent traffic of harmful articles,
regardless of origin. Here, waste’s harms arise after disposal, not
upon entry into state, so there’s no basis to dinstinguish b/w in &
outta state waste.
iv. Also, makes distcintion b/w in & outta staters on the face of the
law
3. State can’t prohibit transportation out of state of natural wildlife captured w/in
state: Hughes v OK
 a. Facts: for conservation purposes, state banned transporting minnows for
sale outta the state, if minnows gotten w/in state waters.
b. Held: fails the test that applies to regulation of all natural resources:
i. Discr against interstate commerce? Y
ii. Valid purpose? Y
iii. Less discr alternatives? Y (that’s why this fails…could limit catch
size or ways minnows are caught)
4. State can’t prohibit transportation out of state of groundwater captured w/in state
unless it closely fits an asserted purpose: Sporhase v NE (groundwater is an
article of commerce & natural resource)
xxv. Proving violations of commerce clause:
1. 5 types of liability
a. purpose (statute written because state wants to discr)
b. intentionally (create hi degree of risk, w/it very likely to happen)
c. reckless (don’t look very hard or care about effects)
d. neg (no real effort… could have accomplished goal in another way)
e. SL (a pure effects test…the behavior or reasonableness of behavior is
irrelevant)
2. How to prove
a. Try evidence (but hardly exists or helps much)
b. More often, courts look for alternate ways to achieve the asserted state
purposes without imposing the discriminatory effect
xxvi. Tripartite model of commerce clause, which we have today
1. small amt of activities that only fed government can regulate (neg commerce
clause area, where mere existence of the commerce clause takes away the states
right to act)
2. small number of activities that can be done by the state
3. most powers fall in middle (if Congress doesn’t act then the States can. This is
where federal preemption comes in.)
xxvii. Market participant theory: where a government owned entity enters the marketplace it can
do things that a private entity could not
1. State may limit sales to self when it produces a good in a time of shortage: Reeves
v Stake
a. Facts: SD, in order to create jobs during depression, went into cement
business. They had a rule that 1st they’d sell their cement to SD.
b. Held: since the state is the market participant, it can make market
decisions without regard to the negative commerce clause
2. States can’t impose post-sale obligations on buyer of its natural resources: South
Central Timber v Wunnicke
a. Facts: Alaska had contract where anyone dealing with harvesting timber
on Alaskan public lands must cut the timber up in Alaska before
exporting it.
b. Held: struck down – it was a regulation of private people & government is
not the direct producer. Protectionist nature of program, sale of natural
resource, & restrictions on resale also made for higher scrutiny.
E. Privileges & Immunities Clause (Art IV, Sct 2, Clause 1)
a. Dormant commerce clause is nearly non-textual. PIC coulda been used to do what negative
commerce clause does.
b. Says: citizens of each state should get all privileges & immunities as citizens in the several states.
In other words, Citizens of all states have same privileges & immunities
c. So U can’t discr against the citizens of any 1 state regarding their essential activities or basic rights
w/o a substantial justification.
d. But if it’s not essential activities or basic rights, state can discr against nonresidents: Baldwin v
Fish & Game (nonresidents paid more for hunting license. Hunting’s not basic right & elk supply
must be guarded, so there was strong reason for statute.)
 i. Statute can’t be overbroad: Hicklin v Orbeck (to tackle unemployment, state hiring
preference for residents gave work to highly skilled residents who didn’t have
unemployment problem. Overbroad…struck down.)
ii. There’s no mkt participant exception to a privileges & immunities arg: United Building v
Camden (Statute required much city construction work to go to in-staters)
F. Federal preemption
a. Is the ousting power of the commerce clause when Congress uses it
b. 3 doctrines used to minimize free mkt state regulation
i. neg commerce clause
ii. interstate privileges & immunities
iii. preemption
c. Preemption q is: once Congress acts under commerce clause, does it wanna be the only regulator
or leave open the option of states regulating?
i. express preemption (in text of statute)
ii. implied preemption (2 types)
1. conflict preemption (use of the supremacy clause, where a federal norm conflicts
w/a state norm – ie Gibbons v Ogden).
a. Ex: Since fed government had uniform power over aliens, states can’t
regulate em in any way, even though the laws don’t conflict: Hines v
Davidowitz
b. Narrowing the reading of fed norm makes it easier to have no conflict
c. Broad reading w/conflict: Gade v National Solid Wastes (court read
structure & purpose of OSHA as a whole, finding it must conflict w/IL
regulation over employee safety)
2. field preemption (there’s no conflict & Congress doesn’t say anything, but
Congress manifests an intention to occupy the entire field).
a. Ex: NLRA
d. Big business loves preemption because fed norms established by business-friendly fed legislatures
will impose regulatory norms that’re less onerous than states.
e. State may restrict industry even if fed government regulates it, if state acts for purposes not yet
preempted by Congress: Pacific Gas & Electricity v State Energy Commission (Congress
intended only to preempt safety concerns & only the Atomic Energy Commission can regulate
that, but states can regulate econ concerns & necessity for more plants.
f. Tobacco: States can’t raise standards thru their own statutes trying to get more warnings, such as
on tobacco, because it’s preempted by federal regulation imposing min standards.
g. Airlines: States can’t apply own standards for tort liability, when fed law governed.
G. Federalism & Bill of Rights
a. 3 doctrines used to minimize free mkt fed regulation
i. narrow the reading of the commerce clause
ii. 10th A (inherent state sovereignty)
iii. 11th A (protect states against fed courts) plus some notion of sovereign immunity (can’t be
sued)
b. 14th A is the nationalizing A, which draws power away from states. 10 th & 11th protect state rights.
c. While commerce clause is for economic issues, due process clause provisions (Reconstruction
Amendments) become the major nationalizing element on NON-economic issues
i. 13th (ended slavery)
ii. 14th (equal protection on states, & to overrule Dred Scott)
1. Used to fight regulation of big business (the regulatory activity deprived
corporations of property w/o due process.)
2. Used to do incorporation doctrine
a. That’s where provisions of the Bill of Rights get applied to the states.
This has given us a nation of freedoms.
b. was driven by mistrust of South
c. The total incorporation view (that 14th A made all Bill of Rights fully
applicable to states) has never commanded Sup Court majority.
 d. We have a selective incorporation process.
i. Beg. in 60s, rights that were incorporated also were incorporated
to same extended as it applied in fed government
1. problem: sometimes were incorporated w/accompanying
full body of fed doctrine
ii. Only the 2nd A & the 7th A provisions dealing w/jury trials haven’t
been incorporated.
1. 14th A not violated when jury award was far in excess of
AL restrictions: Pacific Mut. Life Ins. v Haslip
iii. 15th Amendment (prohibits discr on race for voting)
d. 11th A
i. Enacted to eliminate the ability of Federal Courts to enforce monetary norms against the
states.
e. Bill of Rights wasn’t new ideas: all the rights existed in at least 2 state constitutions—it was more
a codification than an invention of rights
f. Founders worried that writing all rights down would limit the number of rights available
g. Order of Rights:
i. Second Amendment: Bear Arms
ii. Third: Quartering
iii. Fourth: Search & seizure, arrest
iv. Fifth: Interrogation
v. Sixth: Ground rules of adjudication in criminal context, counsel, jury
vi. Seventh: Ground rules of adjudicatoin in civil trials
vii. Eighth: Imprisonment & punishment
viii. Ninth: Rule of construction
ix. Tenth: Rule of construction
h. Threats to functioning democracy (reasons for Bill of Rights)
i. armed threat—the army, the police, the secret police… limits the government’s power to
used armed coercion
1. reason for 2nd & 3rd
2. 2nd A was really to protect against state militias, not fellow citizens.
ii. law enforcement threat
1. reason for 4th, 5th, 6th, 7th, & 8th
th th
i. 9 & 10 are controversial
i. 10th calls on courts to create a non-textual meaning of federalism.
ii. Either both 9th & 10th are enforceable or neither are

Substance

I. Freedom of Expression & Association

A. Intro
a. Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peacefully to assemble, & to petition the Gov. for redress of grievances.
b. 6 textual ideas, w/impt order (showin the life-cycle of a democratic idea)
i. No establishment of religion—protection of conscience. Can’t be forced to support a
religion you don’t believe in
ii. Free exercise—protection of external exercise of conscience
iii. Speech—manifestation of conscience
iv. Press—publishing ideas
1. Association—non-textual
v. Assembly—enacting ideas
vi. Petition—law, government actually doing something
c. Justifications for free speech:
 i. Establishes a free market of ideas…so truth will develop. (Is like market theory in
economics—market will reach optimal efficiency w/o control).
1. Still, maybe regulation’s needed for truth to come out, because otherwise loudest
people will be heard.
ii. Human spirit - allows us to be who we want to be without being controlled by government
iii. Structural protection - free flow of information is needed to give us choices
iv. Theory of fear: don’t trust government w/power to control what people say (government
officials may abuse their power).
1. But, why’s a government censor more dangerous than a private censor?
d. 2 ways to read 1st A: (“Congress shall make no law . . . abridging the freedom of speech”)
i. Absolute/literal theory (Conventional approach – Black & Douglas):
1. “No law” means “no law,” so should be no restrictions on speech
2. Consistent with Scalia’s and Thomas’ literalist approach
3. Breaking it down (to see if literalism works for the 1st A):
a. “Congress”: should only the national legisl body be covered?
b. “Shall make no law”: 1st A doesn’t protect all speech
c. “Abridging”: Does this mean “interfering in an improper way?” What’s
improper?
d. “the freedom of speech”: must define what the freedom of speech is
ii. SpeechEffect. (It’s really the effect that’s being penalized; the speech itself is rarely
regulated.) Qs to ask:
1. Importance: Is the effect important enough?
2. Causation: How likely is the speech to lead to the effect?
3. Alternatives: Are there other ways to deal with the problem?
4. Intention: What’s the intent of the censorship - to stop the bad effect or the
speech? Also, what’s the intent of the speaker - to cause the bad effect or the
speech?
e. 2 types regulation: but may not be mutually exclusive
i. Content-based or viewpoint based
1. discr on either the subject matter or the viewpt
2. or gov seeks to justify law cuz of some harm perceived to flow from message
3. strict scrutiny
ii. time/place/manner
1. non-content based & is justified w/o reference to the content of the regulated
speech – use it if it’s content neutral.
2. intermediate scrutiny usually, cuz it’s not goin after content, unless it’s a porn
theater – then apply lo level scrutiny
B. Modern 1st A as Risk Management (Advocacy of Illegal Action)
a. SpeechEffect. (It’s really the effect that’s being penalized; the speech itself is rarely regulated.)
b. Speed  hearer  evil
c. Government can’t prohibit advocacy of force or illegal action unless there’s potential for imminent
illegal action: Brandenburg: (overruled the clear & present danger test)
i. Facts: KKK has weapons & meetings. Said they’ll take action to counter minorities if gov
keeps suppressing whites – arrested under crim syndicalism law
ii. Held: conviction reversed. Can’t punish mere advocacy or assembly for mere advocacy.
iii. Note: Case goes to incitement (of illegal action or violence), not fightin words (that’re
so irritating no matter what the topic of speech is, that there will likely be violence -
like in Feiner). That’s a difft category. But someone could advocate illegal action &
do fighting words, & then both tests apply.
iv. Notes:
1. This is probably an effects test and not an intent one.
2. Didn’t consider the long-range, very real evil of KKK
3. Shifts a ‘bad tendency’ test to a ‘virtual certainty’ test. The level of risk that we
accept has increased.
 4. Trusts judges to be the final predictors, & tell em to deflect error in favor of
speech
v. Problems:
1. What’s the relevance of the subjective state of mind of the speaker? How are you
going to prove it?
2. Will only marginalized speech be protected, & meaningful speech then be subject
to regulation?
a. Maybe the kind of speech that needs protection is the kind that people
will act on.
b. A general theory of 1st A is that the political branches should take risks
w/speech. We talk because we think someone will act on what we say.
c. So, maybe determinations of free speech within this general theory are
very contextual, as facts (ie level of harm) will differ in each case.
d. Under Brandenburg, general comment to do illegal act at indefinite future time doesn’t show
imminent disorder—Hess (antiwar protestor said generally will take the street later.)
e. Road to Brandenberg
i. Congress may outlaw speech that presents a clear & present danger to an impt government
interest: Schenck
1. Facts: Espionage Act prohibits undermining or drawin barriers to conscription
(draft). D sends out leaflets to military men, tellin em it’s like slavery & they
oughta send out similar leaflets & file petitions w/their congressmen (not illegal
act). Gets arrested for violating act.
2. Held: conviction stands since there was a clear & present danger. If there is such
a danger of a harm that Congress has a right to suppress then Congress can
suppress the speech as well.
a. “Clear & present danger” is a q of degree & proximity. Was wartime in
this case.
b. probable effect: is no effect that coulda occurred except to incite
interference w/conscription.
c. intent: to influence peeps to violate act so doesn’t matter if nobody
read leaflet.
3. Note: clear & present danger (a tendency to cause such an effect) isn’t a thry still
used. Brandenberg requires an almost certainty that it will cause the effect.
4. Gov has fairly wide latitude to regulate action Leaflet distrib. closer to
speech than action—Schenck
ii. Political speech denouncing public policy can be suppressed: Debs
1. Facts: polit figure gave antiwar speech & convicted for violatin Espionage Act.
2. Held: was intent & probable effect (down the road), of obstructin draft.
iii. Speaker must have intent to create evil for the speech to be suppressed : Masses
Publishing
1. Facts: left-wing journal very critical of the war was banned from mail for violatin
Espionage Act.
2. Held: journal allowed.
a. Focused on subjective intent of speaker. Otherwise would suppress too
much criticism since speech can have unintended consequences.
b. Journal lang doesn’t directly advise insubordination to Act. Only if
there’s imminent action leadin from speech / direct incitement (a hi level
of causation b/w speech & illegal conduct, so that speech will lead to
illegal conduct), then speech is illegal. Mere advocacy to change the law
is allowed.
3. Note: shows Holmes (who wrote these cases) starting to trust individual & also
that the hearer is now presumed to be able to filter out the bad speech. Thus there
would need to be a much higher standard of proof to suppress speech.
4. Problems:
a. hard to know speaker’s intent
 b. A speaker can have mixed motives
iv. Don’t need imminent action, but just inflammatory language w/intent of interfering
w/government: Abrams: (Focus on dissent)
1. Facts: supporter of Russian revolution, critical of gov’s war effort, was convicted
under Espionage Act for leafleting to workers to unite in strike. Was a call for a
general strike to prevent the carrying out of policies that would allow the
expeditionary force…a less direct evil than in Schenck & Debs.
2. Held: conviction upheld. Imminent action unnecessary.
3. Dissent (Holmes):
a. Clarifies present danger test in Schenck
b. Speech can be suppressed only if there’s “present danger of immediate
evil or an intent to bring it about.” People can believe what U want
c. Here, was no intent to interfere w/war effort or causation that speech was
likely to move into action.
v. Marketplace of ideas
1. Chafee: stresses the soc interest of free speech - search for truth is process where
public opinion becomes more informed
2. Holmes: views truth as majoritarian prejudice at the time. Ideas clash & lead to
truth (see his dissents in Gitlow and Abrams)
3. Tribe: mktplace of ideas not so free, because the rich have more access to potent
media of communication
4. Schauer: truth is overvalued in the mktplace arg. Government might suppress
speech because it’s thought to hinder effective government, sway trial evidence,
invade privacy, lower public order, etc. Truth isn’t the major issue for such
suppression rationales.
vi. State sedition laws
1. Intro:
a. In response to WW1, most states enacted 2 types sedition laws aimed at
left-wing groups
b. Both focus on motive of speaker and a causal nexus to the ‘bad result.’
Speaker must have a bad intent almost certain to produce the bad result.
2. Criminal anarchy laws (advocacy statute) Ex: Gitlow v NY
a. Facts: Socialist tried to print & distrib. manifesto advocating overthrow of
the gov, to no effect. Convicted under state anarchy law
b. Held: conviction upheld. Is immediate danger though effect can’t be
accurately foreseen – absence of actual results is irrelevant. The speech
was the language of direct incitement.
c. Dissent (Holmes):
i. Speech can only be limited if clear & present danger . (His words
were too indefinite & ineffective here.)
ii. Every idea is an incitement, so that proves nothing to say D
incited something. An incitement is just an enthusiastic opinion.
3. Criminal syndicalism laws (membership statute). Ex: Whitney v CA (focus on
concurrence)
a. Facts: D helped organize & joined a communist org & attended
convention. Is convicted of violating CA criminal syndicalism act.
b. Held: conviction upheld. State membership in criminal org may be
outlawed even if individual member intends no criminal acts.
Participating in grp further menaces the government welfare.
c. Concur (Brandeis): wants clear & present danger test. Fear of injury’s not
enough – need reasonable grounds to believe there’s a probability of
serious injury to government. Only an emergency can justify repression.
Bare membership not necessarily sufficient.
4. Note: diff b/w Brandeis & Holmes
 a. Brandeis believes 1st A is dignitary – necessary for self-realization, not to
make ideas available for everyone else. People have civic virtue to
participate in deliberation, & the state’s committed to the public good.
Even speech that might have bad consequences should be protected
because of its dignitary role.
b. Holmes is more functional. Speech helps institutions operate, so
censorship that protects the function is allowable
5. Peaceable assembly can’t be made a crime: DeJonge v OR
vii. Communism & illegal advocacy
1. “Planning” for imminent action is illegal when gravity of evil justifies it: Dennis
v US:
a. Facts: Ds organized communist party & were convicted of violating
Smith Act (a fed statute mergin criminal anarchy and criminal
syndicalism statutes).
b. Held: conviction upheld.
i. Applies clear & present danger test, which is measured by “the
gravity of the evil, discounted by its improbability.” Existence of
conspiracy creates the danger. Success or probability of it isn’t
criterion
ii. Can teach ideas. But gov has interest to limit speech before it
causes action.
iii. Judge should decide how close the nexus should be…if D
violated Act under clear & present danger test.
c. Concurrences (Jackson & Frankfurter): Congress should regulate this
speech
d. Dissent (Douglas): While Jackson & Frankfurter think Congress should
regulate this speech, Douglas worries if a majoritarian institution
determines how close speech & evil are, it’ll always overstate evil &
suppress…so, jury should decide.
e. Notes:
i. Speed  hearer  evil
2. Advocatin gov overthrow w/evil intent allowed only if action unlikely : Yates
a. Facts: Communist Party officials convicted for organizing overthrow of
gov under Smith Act
b. Held: overruled convictions.
i. Advocacy of abstract doctrine or belief (as it was here) is
different from advocacy of action.
ii. Unlike in Dennis, grp not of size/cohesiveness/etc to accomplish
means. Dissemination of lit, party pronouncements, org history,
statements of USSR affiliation all too remote from action. If
techniques are discussed for achieving violent revolution, that’d
be sufficient for illegal speech.
3. Active membership of org that advocates future violent overthrow alone satisfies
advocacy of immediate action: Scales:
a. Facts: Communist chairman convicted under Smith Act membership
clause, for belongin to org advocating government overthrow.
b. Held: conviction upheld.
4. Membership of such an org is insufficient for speech suppression if the
convictions are based on supposed tenets of org, instead of detailed factual
findings: Noto v US
C. The 3 Categorical exceptions
a. Intro
i. Concerns in this area:
1. Resemble the Brandbenberg concern that the words might lead to evil
consequences.
 2. What the hearer’s belief about someone else is
3. We might be regulating a conduit rather than the speaker (speakers get more
protection that conduit today).
4. Are conflicts of interest when hearer’s interest don’t line up with the speaker’s.
ii. 2 assumptions in the background
1. individuals can be trusted to behave rationally if given opportunity to behave on
their own
2. But government isn’t to be trusted, as it’ll abuse power
3. ex: from Schenk & Debs to Brandenburg, individual is trusted more vis-à-vis the
government.
iii. These categories have different models, because they’re so likely to create evil they
already pass the Brandenberg test. They get very lil const protection.
iv. History of 3 speech types not considered protected:
1. Words that mocked God & religion (peity, blasphemy)
2. Profanity & vulgarizations (ie discussing bodily functions
3. Obscenity - speech about sex (this is only historical speech type left)
b. Libel, reputation, & privacy
i. Standards:
1. purpose
2. knowledge
3. reckl
4. neg
5. SL
ii. NY Times set standard to purpose & knowledge, but it might move down eventually to
recklessness (see notes after case)
iii. Each state gets to decide what level of protection against false speech.
iv. Group libel can be made per se illegal, even if there’s no clear & present danger :
Beuharnais
a. Facts: statute prohibited public exhibition of publication showin grp of people
(race/color/creed/or relig) in neg light that’s productive to breach of peace or to
riots. Organizers of leaflet askin whites to unite against blacks in neighborhood
arrested.
b. Held: statute is const, & convictions upheld.
i. Libel’s treated like obscene speech, which can be punished & isn’t
protected by 1st A. So, don’t need to show clear & present danger since
Const doesn’t protect group libel.
ii. Because states can use libel laws to protect individuals, can enforce group
libel laws as long as related to legit government purpose.
iii. Group libel has such lil soc value that benefit’s outweighed by soc interest
in order & morality
v. Pub officials & seditious libel (indiv defamation; criticism of gov policy & officials)
1. A pub official may recover damages for defamatory falsehood relatin to his
official conduct if he proves the statement was made with actual malice: NY
Times v Sullivan:(1964)
a. Facts: Times published ad sponsored by committee to defend MLK &
struggle for freedom in south…discussed incidents w/some falsity,
suggestin AL police chief is trying to get King. Montgomery police
commissioner sued because he felt his & his officers’ reps were hurt.
b. Held:
i. Protection doesn’t depend on truth of ideas expressed. Can’t
compel speaker to guarantee truth in all factual assertions—would
be self-censorship. Debate should be “uninhibited, wide open,
robust”. Should be unlimited free mkt. Free flow of info about
officials allows true choice about who to elect/keep in power
 ii. Actual malice: speaking w/knowledge of falsity or w/reckless
disregard of the truth. Such lies won’t helps find truth or leads to
self expression (the kind of benefits the 1st A is supposed to
provide).
iii. At most, Times was neg., not recklessness.
c. Prob w/test: Newspapers can now publish false statements as long as they
show due diligence in researching.
d. Notes:
i. Was 1st time Court overrode State’s power to form common law
to make torts. Traditionally libel was a local state problem.
ii. Court took power from states by providing min of what states can
do…states can only choose to give more, not less, protection for
speech than the const standard. Case federalizes libel law by
holding jury must find knowledge or purpose by clear and
convincing evidence. Libel’s no longer a categorical exception to
1st A.
1. Trial judge can take record & decide if a reasonable jury
could find by clear & convincing evidence that
purpose/knowledge was present in the speaker when the
speaker uttered the allegedly false statements. Thus 90%
of libel cases are dismissed on summary judgment.
2. If the plaintiff can get to a jury the plaintiff wins—Juries
are suspicious of the press; judges are protective.
iii. Question of purpose/knowledge goes to a jury. Yet, sometimes
juries take evidence of recklessness as evidence of knowledge.
E.g. if reporter failed to check sources, jury interprets that as
reporter consciously refused to check to avoid the truth.
iv. Newspaper considered speaker, not conduit, because it makess
decision about whether to accept ads. Phones are conduits.
2. Why protect pub officials more? Maybe because society’s interest in such
criticism is great (speech against pub officials is more valuable than speech
against private individual), & public officials have access to media so can often
refute false charges.
vi. Meiklejohn: wants to make changes to clear & present danger test:
1. Free citizens req absolute freedom. Peeps can govern selves thru free pub
discussion (believes in self-government)
2. Only advocacy to action by individuals/nonpolitical grps, not gov, can be
regulated
3. Test abandons freedom of speech when dangers threaten pub welfare
4. Freedom of speech on matters affectin self-government can’t be restricted, but
private discussion can
vii. Chafee’s criticism of Meiklejohn
1. line b/w pub & private speech is blurred
2. pub officials really are ones that do policymaking
3. some speech on public issues is so hateful it must be restricted
viii. Unclear how far down public official should go (sanitation worker?) Court generally asks
if the person exercises significant government power (so teachers are in.)
ix. Private indivs & pub figures
1. Even trickier to define public figure than public official
2. Public issue exception: Rosenbloom (Brennan plurality)
a. NY Times rule extends to defamatory statements involving pub issues
relevant for the democratic discourse whether persons are famous or
anonymous
b. power isn’t only wielded by public officials
3. Standards for public figures: Curtis v Butts & Associated v Walker:
 a. (Harlan): pub figures should show highly unreas conduct that’s extreme
departure from responsible publishers’ standards of investigation &
reporting to recover
b. (Warren): would extend NY Times rule to pub figures cuz line b/w gov &
private sectors blurred & pub opinion may be only way to affect pub
figures’ conduct
4. NY Times standard inapprop for private individuals, even if they’re involved in
public issues, so malice doesn’t hafta be proven: Gertz v Welch:
a. Facts: atty Gertz (neither pub official or pub figure) was falsely described
in publication as “architect in communist frameup” of cop, & he objects.
Editor didn’t know statements were false.
b. Held
i. Must protect some falsehood to protect speech that matters (no
const value in false statements of fact).
ii. Private individuals more vulnerable to injury, because less access
to counteract b.s. thru communication channels, & should be
more protected. Also don’t voluntarily become publicly exposed.
iii. Balancing test: the compelling governmental interest (protecting
citizens’ reputations) in controlling speech about private
individuals vs the values of havin the speech.
iv. So, private individuals are more deserving of remedy, but can’t
get presumed or punitive damages unless there’s malice shown.
Can only be compensated for actual injury if a less than malice
standard is met.
v. There is no public issue libel. For private figures there is a state
libel action.
vi. Though active in community, Gertz not public figure by either
standard of general fame/notoriety in the commun or put in public
controversy so a public figure for limited range of issues.
5. Those w/o special prominence are pub figure only if voluntarily thrust selves into
forefront of pub controversy to get issues resolved: Time v Firestone (not pub
controversy for very rich fam’s divorce proceeding that had testimony bout
adulterous affairs)
x. May be hard for public official to win a libel action, so could try to win under different
tort claim:
1. False light privacy:
a. Some latitude to print falsity, & unprotected only if press prints with
malice (“knowing or reckless falsehood”): Time v Hill:
i. Facts: Time reported about fam’s heroism in hostage situation,
falsely showin violence. Fam objects cuz they didn’t wanna live
thru it again, plus want $, & got a statute makin it hard for em to
lose (which is right to privacy statute – it’s strict liability –can get
damages if show falsity). Time claims was newsworthy & so 1 st
A defense precludes SL.
ii. Held: It’d be too much of burden on press to recheck all shit is
true & it’d chill legit speech. Applied NY Times reckless falsity
standard, but moved beyond NY Times by showin some
defamatory stuff can be printed so that expression freedoms
survive.
2. Intentional Infliction of Emotional Distress
a. Must show NY Times malice (knowing or recklessness falsehood) for
infliction of emot distress against public figure or official: Hustler v
Falwell:
i. Facts: Hustler published a parody of an alcohol ad makin fun of
Falwell (public figure - head of moral majority) bein w/his mama.
 Sued for intentional infliction of emotional distress cuz he finds it
highly offensive though wasn’t believable.
ii. Held:
1. Speech can’t be suppressed solely because it offends
society, even if it is esp outrageous, like here.
2. An intent test (that D intended to cause emot distress)
would deter political satire.
iii. Case implies public figures should have thick skins
3. Disclosure of private facts
a. Moved from the Holmes/Brandeis notion of speechhearerevil to a
generalized balance of the speech’s value vs its injury
b. Newspaper that publishes truthful info obtained legally may not be
punished when it is narrowly tailored to highest state interest: Florida
Star
i. Facts: paper violated statute makin it illegal to publish name of
sex offense vic. Paper got name from publicly released police
report.
ii. Held: passed strict scrutiny.
1. Iis high interest in prohibiting such publication (victims’
privacy, phys safety, encouraging victims to come
forward)
2. Yet, info obtained legally (don’t want self-censorship),
negligence standard of statute too broad, & statute
doesn’t serve protective interests (is underinclusive &
doesn’t forbid victims’ identities spread thru other means
– commitment to the vics’ interest not shown)
xi. Defamation statements of no public concern don’t require a showing of malice: Dun &
Bradstreet v Greenmoss
1. Facts: credit reporting agency falsely reported to subscribers P’s financial status.
2. Held (Powell plurality):
a. 1st A places less value on private than on public speech.
b. Must balance the interest in compensating private individuals for injury to
their rep against 1st A interest in protecting such expression.
c. Since mkt itself is an incentive to be truthful, there’s lil danger of chilling
speech due to libel suits
c. Obscenity
i. Evolution toward a standard
1. Obscenity’s not protected speech since has no redeeming soc value: Roth/Alberts:
a. Obscene material=deals w/sex in a manner appealing to prurient interest
(ie having tendency to excite lustful thoughts).
b. Pornography’s not quite obscenity – has some minimal value as speech.
c. Doesn’t matter that obscenity statutes are interpreted difftly by peeps –
just need to convey sufficiently definite warning as to proscribed conduct
measured by common understanding & practices
d. Notes:
i. The behavioral model (Brandenberg & Dennis) is that the
speaker says something to hearer, which leads to behavior. Roth
seems to take behavior off the table. The speech is aimed at
affecting the hearer, & not aimed at causing the hearer to then do
behavior.
ii. So in some categories of speech, the speech itself is the act. The
speech doesn’t cause the act you wanna regulate; speech IS the
act you wanna regulate due to its harmful impact on hearer.
 2. Sex may be portrayed in non-obscene way: Kingsley v Regents (struck down NY
film licensing law banning sexually immoral acts because unconventional,
unpopular expression is protected too)
3. There’s a 1st A right to possess obscene material in own home: Stanley v. GA:
a. Facts: obscene films found in home
b. Held:
i. Rights to receive info & ideas & to be let alone in home are
protected, but no right to push porn on others.
ii. Lil evid that exposure to obscenity causes deviant sex behavior or
crimes.
iii. If there was danger of reaching kids or intrude upon public, might
be restricted.
c. Notes
i. Only went to books, not acts
ii. Was effort to get rid of obscenity exception – because if you have
right to possess in home, should have right to get such materials.
4. A state may prohibit commercial exhibition of obscene films to consenting adults:
Paris Adult Theatre v Slaton:
a. Facts: theater entrance warned not to enter if under 21 or if nude body
offends U
b. Held:
i. Though no proof of connection b/w obscene material & antisocial
behavior, state could determine connection does or might exist
even for consenting adults who watch obscene porn films. Still
might affect commun environ, human relations, personality
development, commerce, & pub safety.
ii. Consumers/distributors don’t have zone of privacy like in home
(Ccommerce of obscene material’s unprotected in privacy
claims.)
c. Rejects arg in Stanley that if there’s a right to have it in your house, you
have a right to receive it
ii. A revised standard: 1st A doesn’t protect obscenity because it has no redeeming soc value :
Miller v CA
1. Facts: convicted for mass mailing of unsolicited brochures showin sex activities
2. Held:
a. Don’t need to show no “utterly” redeeming soc value (an xtra burden ).
b. 3-part test for jury to determine obscenity:
i. if average person, applyin community standards, who takes work
as whole would find it to appeal to prurient interest (ie not
medical books)
ii. depicts or describes in patently offensive way sex conduct
defined by applicable state law (must be hard core as defined by
state law)
iii. as whole, lacks serious lit/art/polit/scientific value
c. No national standards on prurient int or patently offensive (should be
commun standard so jury must figure out what average person in that
community’d think).
d. Tries to justify obscenity as illegal by:
i. effects on: quality of life, community environment, & tone of
commerce
ii. more importantly, lead hearer to commit unfair or illegal behavior
& affects people’s consciences
3. Note: Community’s usually considered statewide, & sometimes city wide
iii. 3 part distinction often found
 1. consenting adults (highest protection…people who don’t wanna be thrust into this
don’t have to)
2. porn that thrusts itself on people (ie via media regulation)
3. off limits category for kids
iv. Obscenity statutes may be vague (use unclear lang to accomplish a goal) &/or overbroad
(use clear words but prohibit both const & unconst actions)
1. Ds can try to avoid suppression by arguing statute’s invalid as to their conduct
2. Can interpret statutes in ways to avoid vagueness/overbreadth probs
d. Fighting & offensive words
i. History
1. fighting words:
a. when words themselves were triggers for violence because insults broke
codes of honor
b. Speaker & hearer are in close phys proximity.
2. offensive words: remnants of blasphemy, profanity line
ii. Fighting words: face to face words likely to provoke average person to retaliation can be
suppressed: Chaplinsky:
1. Facts: Jehovah’s Witness dissed org relig on street, despite warning, & was
disturbance. Convicted of violatin statute prohibitin face to face words likely to
cause breach of peace (“a goddamn racketeer & a fascist”).
2. Held: conviction & statute upheld. Lewd & obscene, profane, libelous, insulting
or fightin words are such slight soc value & no essential part of ideas that interest
in moral order can outweigh their benefit.
iii. Hostile audiences
1. Heckler’s veto problem
a. Fighting words doctrine is all about: some words are so likely to elicit an
unacceptable response that they’re not covered by 1 st A. so should a
hostile audience be able to shut down a speaker?
b. It can’t mean that any time you say anything that makes a hearer wanna
fight back that your words can be shut down.
c. level of protection of fighting words can’t really depend on who you’re
talking to.
2. Free speech may best serve its purpose when it create atmosphere that’d cause
disagreement: Terminiello:
a. Facts: vigorous criticism of polit & racial grps & condemned howling
mob protesting where he spoke, & was destructive uproar. Didn’t stop
though cops tried to get him to. Statute condemned breach of peace for
speech that invites dispute, causes dissatisfaction w/conditions, or stirs
peeps to anger.
b. Held: statute invalidated & conviction overturned.
3. Must show clear & present danger or disorder or immediate threat to peace to be
suppressed: Feiner:
a. Facts: speaker in black area talking bout blacks’ lack of rights, w/75 or
80 peeps gathered, a couple cops, & 1 guy really mad (angry muttering &
pushing)—maybe on verge of violence. Lil evid to show violence may
ensue. Convicted.
b. Held: conviction upheld. Just gotta show evidence of some likelihood,
not actuality, of violence. State can then prevent or punish such speech.
c. Notes:
i. similar facts, but different result, as in Terminiello. Maybe
because Feiner was calling for action & Terminiello was
describing the world.
ii. Opinions in these 2 cases are essentially useless
4. Don’t wanna restrict speech on street corners (may be most likely to cause
violence, but getting auditorium’s expensive)
 iv. Offensive words:
1. Can’t forbid particular offensive words w/o likely suppressin ideas : Cohen v CA
a. Facts: “fuck the draft” jacket worn in courthouse, arrested for disturbing
peace
b. Held:
i. Presence of involuntary listeners doesn’t justify suppressing
words that could offend. That is, merely makin the speaker feel
terrible can’t be grounds for suppression.
ii. Couldn’t have been considered personal insult (no evid anyone
was offended). So, wasn’t fighting words or intruding on
substantial privacy interest. And wasn’t obscene (not erotic.)
iii. Hard to distinguish b/w other offensive words (1 man’s vulgarity
may be another’s lyric & words often chosen for their force).
Might lead to censorship of unpopular views.
c. Note: case wipes out profanity & blasphemy prosecutions.
2. Ordinance forbidding speech that in any ways interrupts a cop in his duties is
overbroad: Houston v Hill (ordinance is violated lots, but cops only arrest some)
e. Should we recognize new exceptions?
i. Intro: Obscenity, porn, & fighting words are now the 3 unprotected speech types…
considered valueless
ii. Harm to kids
1. States can suppress distribution of child porn, even if not obscene : NY v Ferber
a. Facts: state law prohibited kids’ sex performances. Man convicted for
sellin tapes of boys masturbating
b. Held: conviction upheld.
i. States have even greater leeway in dealin w/child porn than
obscenity, which isn’t protected, because of interest in
safeguarding kids’ phys & psych well-being.
ii. Wants to control child porn (is financial connection b/w speech &
harm). Production of child porn’s illegal, so distrib must be too.
iii. Modified Miller test: don’t need to find appeals to prurient
interest of the average person, or patently offensive, or consider
work as whole. New test is simply that it lacks any (serious?)
lit/art/polit/scientific value
iv. Weighs system fostering child abuse (kids definitely bein
harmed by– though had no studies showin harm) against
speech value (so small that outlawin the whole category of
speech is permissible.)
2. Lil, if any, interest in compensatin vics of speech crime—Simon & Schuster
3. Interests in outlawing child porn far outweighs Stanley’s allowance of porn in
own home—Osborne
a. Facts: OH law’s been interpreted by OH Sup Ct (US Sup Ct will only
interpret a state statute in the same way that that state Sup Ct will) so that
just nude minor w/lewd position & graphic focus on genitals are
forbidden.
b. Held (White): read Stanley narrowly, so can’t own child porn even in
home.
iii. Feminism & porn
1. Feminist views on porn: (proposed LA County Anti-Porn Civ Rights Law)
a. It’s sex discr, exploitive, dehumanizing, shown as likin pain, submissive,
reduced to sex, degrading
b. Should be sex discr to coerce, traffic, or force porn on others, or assault
due to it
2. Porn statute can’t discr on basis of pt of view : American Booksellers v Hudnut
a. Facts: statute prohibited porn on thry that it discriminates against w.
 b. Held (7th Cir):
i. can’t suppress speech by subject. Porn defn of sex discr infected
whole statute. Gov can’t prescribe what’s a good/bad pt of view.
ii. Also, porn isn’t a lo value speech.
iv. Racist & sexist speech
1. Racist speech can’t be banned because it’s content discr: Collin v Smith:
a. Facts: Skokie ordinance outlawed racial slurs (to apply to Nazi org &
prevent psych trauma on holocaust survivors)
b. Held (7th Cir):
i. callin it racial slurs is problematic & wasn’t captive audience –
could avoid area of speakers.
ii. Such speech is highly valued cuz invites dispute & anger
(Terminiello).
c. Note: Consider slippery slope, cuz is intrinsic value in speech w/polit
content. Is big burden on communities to show there’s no value at all
v. Fighting words/Hate speech
1. Hate speech ordinance can’t regulate fighting words against some grps & not
others: R.A.V. v St. Paul
i. Facts: teens broke chair, put it together as cross, & burned on black fam’s
lawn. Were arrested under statute that targets
race/color/relig/creed/gender motivated fighting words.
ii. Held: statute is unconst
1. Statute’s underinclusiveness cuz viewpoint discriminatory. Can’t
discr b/w types of speech w/in a category, based on hostility or
favoritism toward the underlying message, even if that category’s
unprotected (here, fighting words). Polit affiliation, labor,
sexuality are other grps that coulda been incl.
2. Fighting words do have some expressive, just not essential, value
(Chaplinsky). Must target particular offensive mode of
expression, & not the message.
3. There are compelling government interests, but statute’s content
discr isn’t reasonably necessary to achieve those interests.
4. What government can do:
a. Use content discr to exclude entire class of speech, so
there’s no viewpoint discr (ie prohibit only pruriently
offensive obscenity, not just offensive political messages)
b. Use content discr to exclude a subclass of speech that’s
associated w/secondary effects (ie prohibit only obscene
shows that involve minors)
iii. Notes:
1. Is like Collin v Smith: can’t single out viewpoints for neg
treatment even if such viewpoints are expressed thru unprotected
modes
2. Gov will have hard time after that above case to pass hate speech
statute that’ll be const.
a. Ex: “no one can engage in speech involving burning
crosses or any like activity.” Too vague
b. Ex: “no one can burn crosses on private property”.
Singles some burning out, & looks like it has the motive
of only suppressing crosses. Could ban all burning thru a
burning trespass law, though.
2. Racial identity in trials:
a. One’s membership in racist grp is irrelevant to trial sentencing: Dawson
i. Facts: prosecutor wanted to use evidence that murder defendant belonged
to racist gang
 ii. Held: illegal. Coulda presented evidence showin more than abstract
beliefs, but can’t introduce evidence just because jury might find beliefs
morally bad.
b. Victim’s race can be a factor for sentencing : WI v Mitchell
i. Facts: WI allowed sentence to be longer cuz vic was targeted due to race.
ii. Held: legal. Statute aimed at conduct, not speech; no likely chilling of
speech; & bias-motivated conduct has more emotional & community
effects.
D. Unconventional forms of communication: Symbolic speech, body rhetoric, & demonstrations
a. Generally, regulation of conduct is allowed:
i. only if it has an incidental restriction on expression
ii. or if the conduct, which is the phys manifestation of the expression, is clearly a dilemma
(ie shooting the Pres to express your hatred of him.)
b. People who oppose the Dennis test (Black-Douglas), say no law means no law. They say the real
distinction is “speech-action” – speech can’t be regulated but action can.
c. May suppress expressive conduct/symbolic speech (which has both speech & nonspeech elements)
if narrowly drawn to further substantial government interest & interest’s unrelated to suppressing
free speech—US v O’Brien
i. Facts: Congress made it a crime to destroy or otherwise mutilate your draft card & there
was a back up statute requiring possession of draft card. Everyone is required to draft
because 1) it allows orderly process of those who are actually conscripted to get them to
fight & 2) in periods of national peril, never know when you will need a lot of troops – a
general mobilization. So, possession itself is a legitimate interest. Ds were convicted
under military act for burnin draft cards, for what they claimed to get others to adopt their
antiwar beliefs.
ii. Held:
1. Creates a “speech-minus” category (symbolic actions are part of the speech
category) which gives less protection than other speech types.
2. Laid down “O’Brien test”: government regulation’s justified if:
a. w/in const power of government, (I think it means if the conduct can be
regulated by government…see CCNV below)
b. furthers important government int
c. government int is unrelated to suppressin free expression, AND
d. restriction’s no greater than essential to further that interest (narrowly
tailored).
3. Statute passed this test, so conviction & statute upheld.
iii. Problems: Court didn’t balance if government interest was really sufficient to suppress the
communicative aspect & what real motivation of Congress in passing the statute was.
d. Flag-burning
i. Flag-burnin is protected speech: TX v Johnson:
1. Facts: D burned flag in violation of TX law makin it illegal to burn a flag. Lang
of law is that they’re protectin venerated (respected) symbols.
2. Held:
a. Flag burning can’t be suppressed because it’s highly-valued, expressive,
political conduct. It’s not like fighting words.
b. O’Brien test doesn’t apply since government interest is related to
suppressin free expression (fails part 3 of the O’Brien test)
c. Law tried to eliminate offensive expression, w/intent to be really to go
after a certain idea it considers offensive. Must apply strict scrutiny when
related to expression (here, goin after effects of expression).
ii. Can’t prohibit flag burning by government aiming at content of its expression: US v
Eichman
1. Facts: In response to Johnson, Congress passed Flag Protection Act of 1989…
prohibited knowing mutiliation, defacement, burning, keeping on ground, or
trampling US flag
 2. Held:
a. government’s interest to preserve flag as symbol of national ideals is only
implicated when treatment of the flag communicates a message against
those ideals. Yet destroying a phys manifestation of the symbol doesn’t
affect the symbol
b. government’s interest was related to suppression of free expression.
e. Sleeping to show homelessness prob is expressive conduct that can be suppressed: Clark v CCNV:
i. Facts: CCNV wanted to sleep in park to demonstrate plight of homeless. Park regulation
said U can’t sleep or camp in a pub park, because of goals of maintaining park for pub,
health, security, & didn’t wanna open door for all other grps (slippery slope arg).
ii. Held: regulation is const
1. assuming sleeping is expressive conduct, it’s subject to a reasonable time, place,
manner restriction.
2. Appled O’Brien test for expressive conduct: it may be regulated if
a. W/in const power to regulate the conduct
b. regulation’s narrowly drawn to
c. further substantial government interest AND
d. government interest is unrelated to suppression of free speech
3. Here, is conduct-neutral (bans sleeping generally if not in camping areas), strong
government int (to keep parks attractive), & has only incidental effects on speech.
4. Also, an institutional competence arg was made: Park Service knows who should
sleep there better than judiciary.
iii. Dissent (Marshall): park’s in nation’s capital & there’s history of polit acts in that park –
so U want such advocacy there. Applies O’Brien: is intent to regulate content (to target
certain types of speech) & no substantial gov int.
f. Speech can be shut down if it’s an incidental effect to regulating conduct (shutting down
prostitution): Arcara v Cloud Books
i. Facts: statute required a bldg to close for 1 yr if it’d been used for lewdness or
prostitution. Store that sold adult books was shut down on premise that presence of books
brings prostitution, though government didn’t claim any books were obscene.
ii. Held: statute is const.
1. No O’Brien analysis here cuz unlike O’Brien, conduct here (prostitution) wasn’t
protected expression.
2. Inability to sell such books is just an incidental effect to shuttin down prostitution.
The statute wasn’t made to inevitably single out expression or to target expressive
conduct.
E. Speech in the public forum
a. Intro
i. Definition: a legal conclusion that a particular phys area (now it’s even broader than
that…a process) should be treated as a special place where speech occurs under notion of
free mkt of ideas
ii. But such forum is still subject to reasonable restrictions
iii. Government shouldn’t be allowed to treat speech unequally, based on whether
government agrees or disagrees w/the speech. This comes down to a few doctrinal
formulations:
1. 1st A Equality principle – the special obligation that government regulate all
speech equally. (Ex: R.A.V.)
2. Can’t regulate public forum on basis of speech content.
3. Speech subsidizing
iv. 2 basic ideas of public forum:
1. Can’t discr speech in a public forum – all speech must get equal access in a public
forum
2. Viewpoint neutral (content neutral) speech in a public forum is valid only if
a. it’s genuinely unrelated to content (not driven by whether it’s liked or not)
 b. advances some government interest of enough significance to warrant a
regulation AND
c. is narrowly drawn (some notion of precision must apply).
b. Traditional/inherent public forum
i. Ex: sidewalks, streets, public streets, & parks
ii. Phys nature of geography makes it a natural place to have speech…traditionally avail for
those who wanna express opinions or distribute lit
iii. Involves 2 things
1. Strict viewpoint or content neutrality (cases uses the 2 terms interchangeably)
2. Time/place/manner restriction unrelated to viewpoint & narrowly tailored to
government interest
iv. Can regulate movement of peeps & prop on public property, as long as it doesn’t abridge
right to impart info thru speech or literature: Schneider v Irvington
1. Facts: ordinances prohibited leafleting on pub streets or other pub places. Yet,
weren’t charged w/littering but w/distribution that encouraged or led to littering.
2. Held: statute unconst. Government int in avoidin litter doesn’t justify prohibition
on handin out lit. No evidence of litter, & could punish actual litterers but not
thru this way.
v. Right of access to public forum still may have reasonable time/place/manner restrictions:
Cox v NH
1. Facts: Jehovah’s Witnesses convicted for parading w/o permit on sidewalk.
2. Held: const statute - convictions upheld.
a. Government had time/place/manner considerations to conserve pub
convenience.
b. Purposes of avoidin disorder, overlappin parades, & proper policing
justify restriction.
vi. Ward v Rock
1. Facts: Central Park has Sat nite concerts in 1 area of park. Service imposed
decibel restrictions to lower noise levels at nite to apply only to electric guitars in
rock concerts.
2. Held:
a. Time/place/manner restrictions on public forum are ok if ()
i. justified w/o reference to content
ii. narrowly tailored for significant government int AND
iii. leave open adequate channels for communication of the info
b. regulation const, because advancing legit government interests
(preserving noise level) & narrowly tailored & neutral restrictions that
apply to everyone
vii. Government can’t make selective exclusions on public forum based on content: Chicago
P.D. v Mosley
1. Facts: postal employee frequently did peaceful pickets of hi school alone on
sidewalk. Had sign about discr against blacks. Ordinance banned all picketing
w/in 150 ft of school bldg while school’s in session & ½ hr before & after, unless
it’s peaceful labor dispute picket.
2. Held: statute unconst.
a. Reasonable time/place/manner restrictions must serve significant
government int.
b. Here, this picketing is as peaceful as the permitted picketing, &
government must predict violence on case-by-case basis, not thru broad
subject matter restrictions. So it discr on viewpoint.
c. New Public Forums
i. Once you choose to open such a place as a public forum, it must continue to be used as a
public forum w/o excluding speech unfairly
ii. Cases say that both forms of public forum should be treated the same. But it seems the
nature of created public forum have neutral government interests that don’t exist in
 inherent public forums, so it’s maybe easier to defend speech restrictions in created public
forums
iii. Are 3 types:
1. Created public forum
a. Ex: auditorium, after school activity at schools, metaphysical public
forum (when college gives funds for a speech, though the speech takes
place off geographic grounds of college)
2. Limited public forum
a. Government judgment to build a stage for only certain types of speech.
Aims to enhance speech in certain contexts w/o having all the restrictions
of a public forum
b. Must be justification for a limited public forum that’s functional…that the
nature of that public space calls for some limit – not because there’s
viewpoint discr that’s limited to the speech that U like.
c. Ex: public school classroom (U don’t have to discuss B just because U
discuss A, or bring in B speaker just because A speaker was brought in.)
d. Ex: museum
e. Ex: whether a school library can keep book…librarian & students had
right over BOE to insist that the book stay in library because it was
otherwise viewpoint discr as to what books stay. Someone must make
judgment, on some criteria as to what books may stay, but viewpoint discr
isn’t allowed
3. Special mediums of expression
a. Seems to be same as public forum
b. Ex: courtrooms aren’t public forums…they’re special mediums of
expression, where there must be viewpoint neutrality: Velazquez (see
below in public forums section also)
i. Facts: free legal services lawyers (thru Legal Services
Corporation program designed by government) were allowed to
take welfare cases, but can’t take cases to use em as test cases to
reform the system. That is, Congress prohibited Legal Services
Corporation fundin to clients who wanted to challenge welfare
law. Can only focus on factual mistakes for your 1 client or a
misreading of the statute
ii. Held: restriction unconst.
1. Like Rosenberger, it deals w/not a public forum, but still
a very impt forum – the free exchange of ideas. So
government can’t suppress certain ideas just because it
pays for it – that’d violate attys & the decision-making
integrity of courts themselves
2. Unlike Rust, this isn’t governmental speech, but private
speech. Diff b/w this & Rust is that here, the attys talk
AGAINST the government, not FOR the government.
The government can’t monopolize all the voices in the
ctroom, because it’d destroy the ctroom as a forum of
fairness.
iii. Note: This isn’t a public forum case. Neither clinics nor courts
are
iv. Private residence & abortion
1. Abortion is pigeonholed (maybe due to ct knowing violence occurs outside
clinics, thus try to give states some latitude to prevent that)
2. Can be reasonable time/place/manner regulation on protesting, educating, &
counseling outside health facilities: Hill v CO
 a. Facts: statute forbids knowingly approaching w/in 8 ft of other person at
entrance to health care facilities w/o their consent to engage in a form of
written or oral protest speech
b. Held: const.
i. Even though statute looks content-based, or discr-viewpoint, or
rejection of speech category, is unwilling & captive listener &
speech is considered offensive.
ii. It’s a time/place/manner (reasonableness) regulation, not
suppression of all speech, cuz applied equally to all expressive
speakers & content, & won’t shut out speech or ways of
communicatin w/passersby.
c. Problem: seems to fail both prongs of public forum
i. Is content-based (aimed at anti-abortion speech)
ii. Not narrowly drawn – too broad. Need affirmative consent
before comin w/in 8 ft but that won’t happen.
3. Manner & place allow government to prohibit focused picketing outside homes :
Frisby v Schultz
a. Facts: anti-abortion picketers marched on street outside doctor’s home.
Ordinance prohibited “focused picketing” (targeted at residents) near
homes.
b. Held: statute const.
i. Is captive, unwilling listener, & strong interest in the right to be
let alone in own home.
ii. It passes hi scrutiny since it’s content neutral & narrowly tailored
to the household, plus alternative communication types remain
c. Notes:
i. downplays that this speech may be more effective than others.
ii. Like Stanley v GA (can have porn in own home), recognizes
sanctity of home
4. Can’t have 300-ft buffer around homes of those who work at abortion clinics, cuz
isn’t narrowly tailored (could limit time, duration, # of peeps picketing outside
smaller zone)—Madsen v Women’s Health Center
v. Airport terminals are not a public forum, so handbilling/solicitation can be restricted:
Krishna v Lee
1. Facts: Hare Krishnas tried to do relig ritual (give literature & solicit funds). Port
Authority has solicitation ban in terminals so as to let peeps pass by, so only some
peeps can be speakers
2. Held: statute is const.
a. Airports not traditional or created public forum (not in existence many yrs
or historically made avail for expression, & purpose is for travel & profit
& not expression.
b. Since not a public forum, is reasonable standard. Solicitation causes more
probs than givin out lit: stops traffic, coercion, fraud, peeps unlikely to
complain when in rush. Solicitation ban upheld cuz it’s a narrowly
tailored time/place/manner restriction (manner=stopping).
3. Note: now, everyone can give out leaflets, because it’s a recognized public forum.
(Why? Not every government-owned space is a public forum – it must be turned
over in some way for free speech. So, it’s because of large #s of people)
vi. Public bus cards aren’t a public forum, so transit system can sell commercial ad space &
refuse space for political ads: Lehman v Shaker
vii. Polling place is public forum, so solicitation & distribution can be restricted near em:
Burson v Freeman
1. Facts: state prohibited solicitin votes or distributin campaign materials w/in 100 ft
of pollin place entrance
 2. Held: statute upheld. Strict scrutiny satisfied (protects voters’ rights, &
narrowly drawn)
viii. Permits
1. 1st set of restrictions
a. Can’t be a system of local discretion. (Otherwise, will be no viewpoint
neutrality. Then, cops could just arrest people that could’ve been the
subjects of a narrowly tailored regulation)
b. Can’t be overbroad. (ie can’t regulate all picketing b/w 6 & 10 pm.)
i. An overbroad statute is void on its face. Even if U threaten pres’s
life, U can’t be prosecuted on an overbroad statute such as “Can’t
bother politicians.”
ii. Problem w/overbreadth: allows discretion in who to prosecute.
c. Can’t have vague criteria (givin too much power for officials to
prosecute)
i. Hard to be both not vague & not overbroad.
2. 2nd set restrictions
a. every permit must be subjected to immediate (w/in 24 hrs) judicial review
b. substantive restrictions
i. Government must explain what interests they think they’re
satisfying by not letting U speak.
ii. That must be content neutral (unrelated to the popularity of that
speech.)
c. must be fair distrib of access to public forum that’s geographically unique
d. More on public forum
i. Public forum emerged in mid 60s & 70s as full blown doctrine to try to protect speech.
But it’s worked as an anti-speech device….If U open your space, U really open your space
to everyone who wants to speak there, so people decide no speech is better than opening
up a forum to all kindsa speakers.
ii. Sup Court’s decided that privately owned land can’t be public forums. So privately-
owned shopping malls can’t be public forums. The states have split 8-8 on whether
shopping malls are public forums
F. Hierarchies of speech
a. Top tier of speech
i. Political speech (related to decisionmaking processes of free people) is at top
ii. Notion of science – gets very close to same protection of politics. Science gets badly
tested to national security concerns, when government restricts what scientists can say.
iii. Art…Art & science are sorta integrated into political speech, though sometimes art &
science don’t have the doctrine pushed as far.
iv. Notes
1. Brandeis says speech doesn’t hafta be functional in order to be protected
2. Holmes says speech is protected because it performs a functional benefit (allows
institutions of choice to function)
b. 2nd class of speech
i. Sexually explicit speech
1. very different from obscenity, because obscenity’s NOT protected… but non-
obscene sexually explicit speech IS.
2. Theater porn is lo value, less impt speech, so ordinance receives lo level review of
reasonableness: Young v American Mini Theatres
a. Facts: anti-Skid Row ordinance restricted where porn theaters could be.
Choice of location for adult business makes it very restrained.
b. Held: ordinance is const.
i. Should be a significant degree of zoning discretion for sexually
explicit speech. Concern is not w/the speech but the side effects
of it on surrounding community (lowers the prop value, attracts
other raucous business, degrades surrounding geographic area to
 the pt it makes people’s lives less fulfilling. The major concern is
that people from other communities will come in & support such
speech & bring in negative effects.)
ii. Is considered Equal Protection case (theatres singled out), so gets
lo reasonableness review - ct applies test for content-based
approach. Some expressive activity is less worthy than other
speech & may be restricted, & there’s a reasonable basis (neg side
effects) to treat porn theaters difftly.
c. Notes:
i. Only deals w/sex bookstores & theaters – it’s not been expanded.
ii. This is the only speech that has geographic restrictions (Hill v CO
sorta does)
3. Time, place, manner restriction test w/lo level scrutiny for porn theater locations :
Renton:
a. Facts: city ordinance said porn theaters can’t be w/in certain space of
certain structures (limitin theaters from >90% city), & are areas that can’t
be built on for a porn business that wants to relocate.
b. Held (Rehnquist): const.
i. Ordinance aims at negative 2ndary effects flowin from such
business, not the content, so it’s not content-based.
ii. Thus, it’s a time/place/manner restriction & needs to serve
substantial government interest & allow for reasonable alternative
communication means.
iii. Relied on law review article (jumped from facial approach to
empirical approach)
4. A statute may prohibit public nudity, even if it includes nude dancing: Barnes v
Glen Theatre:
a. Facts: public indecency statute prohibited nude dancing & required
pasties & G-string
b. Held: const statute.
i. Apply O’Brien for content-neutral restrictions & incidental
burdens on symbolic speech like nude dancing.
ii. Here, is subst government int (morality/order), unrelated to
suppressin expression (doesn’t take away expressive effect of
dance, just makes it less graphic), & is narrowly tailored (dancers
wearin that is bare minimum to achieve government purpose)
iii. So, like O’Brien, can separate message from conduct …can
separate dancing (art) from nudity itself. (They can regulate the
act of getting naked, not the message it sends.)
c. Notes:
i. when the court says the value of the message of nude dancing is
lo, it doesn’t take much physicality to overwhelm that message.
ii. case seems to say beer & nudity don’t mix, though wine & nudity
(ie nudity at the opera) would be ok. This might be a soc class
distinction.
ii. Commercial speech
1. History:
a. Earlier cases didn’t protect commercial speech. it didn’t use to be thought
of as speech a few decades ago. It was economic regulation. The speech
was regulated along w/the product.
b. the arg that clinched it was that the justification for commercial speech is
closely analogous to political speech (which said democratic choice can’t
function w/o free flow of info). Similarly, for commercial speech,
capitalist system based on consumer-driven markets needs the same
freedom of information flow.
 c. Now, gov has broad latitude to regulate it.
2. 2 ways commercial speech differs
a. Commercial speech is 100% hearer-driven – it’s the hearer (consumer)
that needs the info.
i. Most other types of speech are speaker-driven (though Hill v CO
is protecting hearers.)
ii. Speaker-driven 1st A protection doesn’t care about the truth of the
speech, whereas hearer-driven 1st A protection does. There’s no
protection for false & misleading speech, because that doesn’t
enhance efficient market choice. That’s why commercial speech
is less protected than political.
b. Might be able to regulate commercial speech, where there’s a strong
interest in regulating the underlying activity, by limiting the speech that
controls that underlying behavior.
3. other possible differences: verifiability, durability, unrelated to self-expression,
lower risks of error, interest in regulatin contracts
4. Solely commercial speech, that’s truthful, can be protected: Virginia State Board
of Pharmacy
a. Facts:
i. Pharmacy wanted to advertise drug prices. Was a law not to do
this at risk of “unprofessional conduct.” It’s a ban on advertising
prices.
ii. Was really an anti-trust case. Were small mom & pop stores
under siege by big chains. Price advertising by big stores woulda
driven small stores outta business. So small stores used
government to protect selves against comp. Loss of small stores
may’ve been a big soc loss (ie pharmacist who knew who you
were, servicing the community). But from a mkt standpt,
blocking such speech would be a way for drug co.s to keep prices
hi.
b. Held: statute unconst.
i. Speech can be protected even if $ is spent to project it or it’s in a
form sold for profit. Is very strong interest in flow of commercial
info, for our econ system & esp helps sick/poor/aged.
ii. Commercial speech is subject to these restrictions:
1. False & misleading commercial speech isn’t protected.
2. Time/place/manner restriction
3. Can’t advertise illegal transactions
iii. A time/place/manner regulation doesn’t hold here, cuz is such
strong int in speech, singles it out due to content, & not narrowly
tailored (tries to get rid of it completely).
5. State may forbid attys’ in-person solicitation of clients for financial gain: Ohralik
a. Facts: State prohibited ambulance chasing thru anti-solicitation provision.
b. Held: const. Banning this absolute ban on type of speech in particular
situation is important state interest, cuz professional conduct (activity
involved w/this speech) can be regulated. Unlike public ads, in-person
solicitation’s not open to pub scrutiny & it’s coercive. State doesn’t hafta
prove actual injury.
c. But in In re Primus, state can’t discipline ACLU atty who advised grp of
possibly illegally sterilized w of rights & initiated further contact w/1 of
willingness to freely represent (No record of coercion, invasion of
privacy, misrepresentation here)
6. Don’t underestimate value of commercial speech : Cincinatti v Discovery
Network
 a. Facts: city allowed many newsracks, but prohibited newsracks w/some
publications of commercial speech
b. Held: unconst. Shouldn’t distinguish that strongly b/w commerc & non-
commercial speech
7. Door to door: Can’t forbid knockin/ringin bell at home to give handbills where
many slept in day cuz coulda been more narrowly tailored (put sign on door like
do not disturb)—Martin v Struthers
8. 4-part test for commercial speech cases: Central Hudson test
a. Goals: to avoid probs of blanket prohibitions that don’t protect consumers
from commercial harms (lotsa criticism & unclear results, cuz no clear
standard, but is central commercial speech test):
b. Test:
i. Expression protected by 1st A? (Commer. speech must be lawful
& not false or misleading)
ii. Substantial governmental interest?
1. Levels of significance: compelling, substantial (unclear
what diff is b/w those), legitimate, & sometimes rational
iii. Efficacy: Does regulation directly advance the asserted
governmental interest?
iv. More extensive than necessary to further governmental interest?
(Are there alternatives to achieve desired result? Government
must show that a more limited speech regulation wouldn’t have
adequately served government int.)
9. Cases under Central Hudson test:
a. Commercial speech should not be fully suppressed if it can be regulated
in less restrictive ways: Central Hudson
i. Facts: to conserve power, regulation prohibited ads by electric
utility except for encourage consumption at off-peak times.
ii. Held: unconst. Under part 4, electric services that’d reduce or not
aggravate energy use could be shown, or format or content could
be restricted like w/info about relative expenses & efficiency of
energy uses
b. Gov doesn’t have broad discretion to make blanket ban on misleading
commercial speech targetin legal activity: 44 Liquormart v. Rhode
Island
i. Facts: RI wants to increase price of beer and wine to decrease use
by kids. Made prohibitions on advertisin alcoholic beverage
prices: 1) can’t advertise if it’s visible from outside store or 2) on
any publication or broadcast
ii. Held: unconst cuz not sufficiently tailored…applied
intermediate scrutiny
1. Blanket bans often rest on offensive assumption that
public will react irrationally to the truth (should be
skeptical of paternalism cuz peeps should be trusted to
have enough info & be able to make own judgments).
2. Gov didn’t present evidence to suggest prohibition’ll
significantly reduce mkt-wide consumption, or that it’s
no more extensive than necessary. Need studies showin
causal links, not mere assertion of neg 2ndary effects
3. Activity’s a const protected activity, so state legisl
doesn’t get broad latitude of choosing to suppress or not
4. No greater-incl-lesser arg works here (banning speech
may actually be more intrusive than regulating the
commercial activity).
 5. Shouldn’t be any greater suppression permission if “vice”
cuz “vice” could mean anything w/any potential health
prob.
G. Procedural protections
a. Overbreadth: did the government draft too broad a statute?
b. Vagueness: did the government give adequate notice of what it was doing?
c. Equal Treatment: can’t treat speech differently (ie public forum cases, hate speech in R.A.V.)
d. 1st A Due process: can’t try to block unprotected speech without it being presented to official who
can act as a check.
e. Prior restraints
i. Intro
1. Prior restraint=shuts off communic from entering the mktplace of ideas before it
takes place.
2. Irrelevant if speech was protected or not (ie obscene) – if government tries to
regulate at wrong time, it loses
3. But prior restraints not per se unconst – context dependent
4. Pros:
a. stops negative effects before occur (ie publication of bomb formula)
b. avoids subsequent punishment of speaker (Subsequent sanctions may also
be subject to more public debate)
c. judges may lack institutional capacity to make a decision to suppress
speech
5. Potential probs:
a. Overbreadth
b. Vagueness
c. Less opp for pub criticism/appraisal (prior restraint may be a hearer
driven doctrine – hearers have right to hear it)
d. Really blocks off speech (can violate a statute or executive order, then
impose a 1st A defense when they try to prosecute you. But if a judge
enjoins you, (say a racist judge in civil rights movement) you cannot
violate it and then argue against it – you must appeal it or have it vacated)
ii. Can’t subject freedom of press to license & censorship: Lovell v Griffin
1. Facts: Ordinance prohibited distribution of literature in city w/o permission
2. Held: unconst.
a. Distribution & publication both are essential to 1st A freedom.
b. Ordinance is overbroad because prohibits distrib that doesn’t interfere
w/government interests
iii. Injunctions: Prior restraints shouldn’t be used to suppress defamation: Near v. Minnesota
1. Facts: newspaper charged pub officials w/racketeering. Statute authorized
suppression of a paper that defames someone, unless paper can convince judge
that charges are true & is justifiable motive for the printing
2. Held: unconst.
a. Some prior restraints might be ok (ie obstruction to recruiting service,
obscene publication, incitement to gov overthrow or violence).
b. But worries about slippery slope toward a complete system of censorship.
3. Note: Apply this for prior restraint, but apply Times v Sullivan if there’s already
been printing & thus defamation
iv. Collateral bar rule
1. a court order must be obeyed til set aside – can’t defend disobeying it on ground
the order was wrong or unconst
2. Rule upheld in Walker v Birmingham (petitioners neither moved to dissolve
injunction or comply w/ordinance, so their 1st A claim wasn’t considered)
v. Prior restraints are allowed to pre-screen movies for obscenity: Times Film Corp v.
Chicago
1. Facts: code required all movies to be submitted for approval before being shown.
 2. Held: const.
a. Relied on Near for obscenity exception. Obscenity’s not protected
speech.
b. So, refuses to take per se rule on prior restraint.
vi. Prior restraints & national security
1. If prior restraint’s not dealin w/national security, don’t apply strict scrutiny.
If dealin w/national security, apply strict scrutiny.
2. National security’s understood VERY broadly – not just possibility of war,
but stuff like security w/its allies
3. Gov has heavy burden to show a true security risk: Pentagon Papers
a. Facts: newspapers got hold of military plans for Nam. Not gotten legally
from gov, & gov wants injunction so info’s not published.
b. Held: can be published. Any system of prior restraint has heavy burden
against its const validity. Gov failed its burden here to justify restraint.
4. Examples of court allowing prior restraints:
a. Can have prior restraint against publishing restricted data about nuclear
weapons (cuz direct, irreparable harm to US is at stake): US v
Progressive. Differed from Pentagon Papers cuz:
i. This involves more current data
ii. No national security risk (just embarrassment) shown in
Pentagon Papers
iii. Statute (Atomic Energy Act) involved here
b. CIA can require employee to submit book for review when it deals
w/experiences in CIA (whether or not there’s express employment
agreement of secrecy, which there was here): Snepp v USa
H. Speech, $, Power
a. 2 perspectives relevant to previous & subsidy materials:
i. destabilizing speech
1. Deals w/destabilized political order, sexual order, relig order, etc. that altered a
comfy status quo that people lived in
2. Led to strong 1st A doctrine (ie Brandenberg, etc)
ii. stabilizing speech
1. more of this came in Reagan yrs
2. Deals w/stereotypical representation of minorities, w, etc…Hindered change--
perpetuated existing unacceptable status quos. Were destabilizing censors, who
didn’t like the status quo, & wanted a fair share of econ pie, more civil rights, etc.
Worried stabilizing speech would win if they weren’t stopped.
3. Led to extraordinary 1st A cases, like flag burning cases
4. In 80s, became clear that the Left wasn’t gonna win. The censors changed to
become Left censors. The side that thinks it’s losing is the 1 that needs
censorship of the other side. It appears that the courts said we’re not gonna erode
1st A doctrine because of political changes.
5. Government sends mad $ to:
a. subsidize speech of the poor (in court via public defenders, build parks for
demonstrations)
b. educate everyone
b. Government funded speech (Subsidies & tax expenditures)
i. Intro
1. Need $ to speak. People w/greater resources are favored.
2. We have a love/hate relationship w/government.
a. We’re suspicious of it & don’t want it involved w/everything we do – we
don’t trust it.
b. Yet, we love it because of democratic process – we need & want it to do
things for us. (Left wants to guarantee fair distributions of wealth; Right
wants ability to operate w/o interference of outside force.)
 3. Big debate in subsidy & funding cases is, if we take government outta the game,
what forces are coming in to take its place?
4. Problem w/European liberalism (individualistic autonomy instead of the state) is
that powerful private players will step in & exercise regulatory power that the
government used to.
ii. Gov can’t suppress speech comin from a group but it has power to lift the burden of
taxation under reasonableness review: Regan v Taxation
1. Facts:
a. Veterans get tax exemption, which is a fed subsidy. So government
decides to tax most peeps but lift the tax w/respect to certain grps, so it’s a
benefit.
b. Ps (Groups of charities) challenge provision of Internal Revenue Code
(which essentially holds U can’t deduct contributions to orgs engaged in
lobbying, such as the ACLU.) Ps say it’s unfair to give subsidies to some
grps to lobby, when other grps aren’t allowed to lobby…lobbying should
be major free speech – a way to talk to government thru constituents…so
government was expending tax $ by viewpoint discr manner.
2. Held: const.
a. Gov has much latitude over who can avoid taxes cuz of institutional
competence, & also because government giving benefits (taking away
barriers to speech) are clearly distinct from government placing burdens
(suppression of speech). Gov has capacity to fund or not to fund.
b. Grp preference gets reasonableness review. Court applies rational basis
(reasonableness, a very lo level) review here because gov isn’t helping
veterans’ speech, so it’s a category of recipients & not of viewpoint.
(Usually, viewpoint discr raises level of scrutiny.)
c. Veterans pass rational review – can be subsidized when others aren’t
because veterans have made special contribs to US. It’s not trying to
drive a grp outta mktplace & it’s not necessarily viewpoint discr.
3. Notes:
a. Looks like veterans take certain views & government thus supports em…
but court rejects that arg (as it does in Rust)
b. Also, grps might be RELATIVELY worse off if others are better off,
because others can get their pts across & they can’t. So viewpoint discr
subsidies can distort mkt in same way that viewpoint discriminatory
speech restrictions can.
iii. Can’t condition giving private $ on how U use private $: FCC v League of Women
Voters
1. Facts: Congress tried to protect subsidized public tv, by takin it outta politics. So
public tv stations that accept any government subsidies 1) can’t use that $ to
endorse any political candidate, 2) can’t use any private $ to endorse a political
candidate.
2. Held: struck down law. Broadcast restrictions upheld only when restriction’s
narrowly tailored to further substantial government interest, such as ensuring
adequate & balanced issue coverage
iv. Ct has more power to restrict speech when its funds are at issue: Rust v Sullivan
1. Facts: gov set up program for fam planning services, but statute said 1)
government funds can’t be used for abortion purposes, because that’s not fam
planning. Docs can’t counsel, refer, or even address abortion. 2) If fam planning
uses private $, cant use that $ to talk about abortion, unless it’s in a phys sep
facility. Clear restriction of speech by government onto docs. Docs who are
grantees (get funds) sue government .
2. Held: upheld both prongs as const. Used lo scrutiny.
 a. Gov can choose to fund who it wants cuz has limited funds. Government
doesn’t hafta subsidize counterpart once it subsidizes 1 right. Restrictin
viewpoints is ok because it’s gov $ at issue. It’s not quite viewpoint discr.
b. It’s not suppression because speech can go on elsewhere to patients.
c. And Ps are no worse off, because there otherwise woulda been no family
planning clinic if it wasn’t for the government giving funds in the 1 st
place.
3. Problems:
a. Pregnancy can lead to many health risks & blocking abortion advice can
mislead w that they don’t face health risks
b. Esp to poor pregnant w who want info, government has nearly created a
monopoly of limited info exchange
c. Slippery slope--So much of what’s now said is a mix of government-
funded & private funding. So Guiliani can try to get certain artwork outta
museums, because museums get some government funding.
v. Schools
1. Government can make resource allocation decisions that require it to favor some
types of content vs others. (don’t hafta give limited funds to film class just
because French class gets $.)
2. Sup Court struck down school regulation of books that positively enhance
students’ vision of world, when that book was taken OUT of library once it was
already there: Island Trees (?)
3. Government fund to a research grp can require that the grp research that topic
4. Gov can choose who to ease burden on, but can’t suppress funds based on
viewpoint discr: Rosenberger v UVA
a. Facts: UVA has $ set aside for student publications. Pretty much every
student grp has papers. But 1 grp doesn’t get a subsidy – an evangelical
Christian grp. They wanted to write about relig issues. UVA didn’t
wanna violate Estab Clause (which bans government from assistin relig in
certain circumstances.) UVA defends on Rust, sayin we can create our
program however we want, because we want secular speech
b. Held: unconst.
i. Must be a genuine free mkt of ideas-- can’t have a government
subsidy skewing the free mkt of ideas by well representing
secular viewpoints while not subsidizing relig viewpoints to let
em compete equally w/secular args. So there’s been relative
disadvantage of relig viewpoint.
ii. even if there’s no hostility to the speech, government can’t not
subsidize it.
iii. And government created a sorta public forum where private
speech was supposed to take place.
c. Note: Rust wasn’t for private individuals to make speech – it was for
government employees to make speech sponsored by the government, so
it wasn’t a public forum
vi. Gov can restrict who to give funds to for art, by usin subjective criteria: Finley
1. Facts: National Endowment for the Arts opposed 2 artworks (homoerotic & Piss
Christ) & passed statute requiring app, ensuring artistic merit thru judging by
general standards of decency. Wanted to avoid obscenity cuz it thought it has no
artistic merit or protection.
2. Held: const.
a. Statute allows for considerations & has no categorical requirement other
than refusing to fund obscenity. Not vague cuz art criteria is subjective
by its nature.
b. Unlike Rosenberger, arts funding is competitive grant process & calls for
makin aesthetic judgments – can’t fund all applicants who meet threshold.
 vii. Velazquez (see below in public forums section also)
1. Facts: free legal services lawyers (thru Legal Services Corporation program
designed by government) were allowed to take welfare cases, but can’t take cases
to use em as test cases to reform the system. That is, Congress prohibited Legal
Services Corporation fundin to clients who wanted to challenge welfare law. Can
only focus on factual mistakes for your 1 client or a misreading of the statute
2. Held: restriction unconst.
a. Like Rosenberger, it deals w/not a public forum, but still a very impt
forum – the free exchange of ideas. So government can’t suppress certain
ideas just because it pays for it – that’d violate attys & the decision-
making integrity of courts themselves
b. Unlike Rust, this isn’t governmental speech, but private speech. Diff b/w
this & Rust is that here, the attys talk AGAINST the government, not
FOR the government. The government can’t monopolize all the voices in
the ctroom, because it’d destroy the ctroom as a forum of fairness.
3. Notes:
a. This isn’t a public forum case. Neither clinics nor courts are
b. Can’t harmonize Rust & Velazquez-- Hard to show why Dr.’s and
Lawyers should be treated differently.
viii. Possible restrictions on legal services lawyers:
1. If government banned legal services attys from participatin in a class action:
a. to challenge it: gov’t still isn’t the speaker; treat it as a restriction on
private speech, & class actions give a broader forum
b. to defend ban: can have neutral restrictions on private speech. Not
viewpoint discriminatory b/c can still bring individual claims
2. If government says can’t receive court-ordered fees: Seems facially neutral—still
can take the case
3. if government says they can’t take welfare cases: const under current laws (always
been walled off from controversial ‘disfavored rights’—apportionment,
desegregation of schools, requests to get abortions, selective service violations)
ix. Subsidy doctrine is unstable
1. Gotta find the real speaker (gov’t, lawyer, Dr.? This is very crucial in media
regulation—is it the media? Is it the audience?)
2. Rehnquist & Scalia say there is a ‘reality, status quo ante regulation’ baseline and
that regulation drives speech below that line. The gov'’ has altered the status quo
in a way that keeps people from doing what they were already doing. They argue
that subsidy cases are ‘status-quo +.’ (Rust—poor women are better off or at least
no worse off than they were without reg.) Gov’t enabling some people to talk.
The people without $$ are status quo.
3. Kennedy in Velasquez looks at the regulation post.
x. Note: Someone has to look at the content to see what kind of speech it is (so it may look
like content discr). Once you decide what kind of speech it is, can’t control the debate
within the pigeonhole by favoring one side over another (that’d be viewpoint discr)
b. Government as educator
i. Concerns:
1. Government makes choices about what to teach—in a way a form of massive
propaganda.
2. Yet wants to create a notion of autonomy for teachers and librarians.
3. and wants to balance free expression & learning
4. plus, student audience is young
ii. Law is an ascending spectrum. In primary education cases, gov’t is speaker, teacher is an
agent. By the time you get to state supported universities/professional schools, professors
are accorded a significant level of 1st A protection
iii. There’s no 1st A protection for student speech in classroom over objection of authorities
 iv. Can’t suppress students’ speech unless it substantially interferes w/others’ rights : Tinker
v. Des Moines Sch. Dist.
1. Facts: students suspended cuz wore black armbands to publicize Nam objections.
Was pure speech - potentially inflammatory but involved no violence or
infringing on other students’ security or learning.
2. Held: unconst to suppress. Only targeted this type of symbol wearing, in effort to
avoid controversy, but 1st A advocates openness & args.
3. Dissent (Black): armbands caused some comments & warnings even in class
– so did destruct learning by distractin students to think of Nam
4. Dissent (Harlan): school officials should have lotsa latitude to maintain
order, & students should bear burden they were suppressed cuz of content &
not legit school concerns
v. Student press
1. Speaker is the principle/educator. Speakers can decide what goes in the paper. If
the speaker were the student editors, they could fight off administrative
regulation.
2. checks on government as speaker:
a. Can’t have obvious/excessive use of gov’t resources to argue one side of
an issue
b. Can’t simultaneously silence critics.
3. Underground school papers have protection unless they are disruptive under
Tinker. Official papers are just controlled papers.
4. Educators can use editorial control over content & style of student speech in
school-sponsored speech as long as reasonably related to educational concerns:
Hazelwood v. Kuhlmeyer
a. Facts: high school journalism teacher cut out 2 stories in paper bout
pregnancy & divorce (to keep identity of parties, be approp because of
young kids at school, & get parental consent/response)
b. Held:
i. Newspaper not a public forum & had educ purpose only, so
officials can regulate in reasonable manner, & pub students’
rights are less than adults’ rights outside school.
ii. Though school may hafta tolerate some student speech, as in
Tinker, can’t be made to promote all of it.
iii. Here, school acted reasonably in suppressing.
c. Dissent (Brennan): under Tinker, can censor only if substantially
interfere w/education. Is viewpt discr & could chill student speech.
vi. School library books can’t be regulated thru biased & irregular fashion : BOE v Pico
1. Facts: BOE removed 9 books from school libraries & made 1 available only
w/parental consent – cuz deemed em anti-US, anti-Christian, anti-Semitic, &
filthy. Learned of books from conservative org.
2. Held: unconst.
a. 1st A limits school board’s discretionary removal of books from hi school
library
b. Discretion in library content would be allowed only thru unbiased,
established, & regular procedures, such as to remove books that’re
educationally unsuitable or pervasively vulgar. Here, removal procedures
were irregular & seemed politically biased.
c. Government as provider (Employer/Patronage)
i. Background
1. For many years political campaigns were financed by a process where the winners
got to give out jobs to supporters. Supporter would work for free in hopes of
getting a job later. Could reward friends and penalize enemies. This creates large
pool of volunteers generated by desire to get/keep job
 2. If you take out patronage from the system, what do you put back in? Special
interest funding.
3. Does it make sense to end political patronage through 1st A?
ii. Government doesn’t have right to use its power to influence beliefs by taking away jobs
based on politics of the person: Elrod v. Burns
1. Facts: dismissal of nonpolicymaking & nonconfidential state & local government
employees based solely on their not bein affiliated w/particular political party.
2. Held:
a. can’t dismiss public employment jobs based solely on belief &
associations
b. only dismissals that’d be allowed is if they further vital government int,
w/narrowly tailored means, & benefit outweighs loss of rights. These
interests aren’t strong enough:
i. need for effective government
ii. need for political loyalty of employees
iii. preservation of democracy & vitality of party politics
c. positions of policymaking or confidentiality, where party affiliation
would significantly affect government, are exempt from protection
3. Criticism: Everyone should be accountable, even people at lower levels.
However, if want to hold people responsible, the way to do it is not to make jobs
dependant on politics but instead to have rules connected to employment.
4. Aftermath:
a. Case protects the workers… Government employees today have
unparalleled political freedom.
b. Case has been expanded to contracts! If you have a contract to tow
w/local municipality, a new mayor can’t take it away
iii. There is an important distinction (class/reality-driven) about cases. Heirarchy of gov’t
employment.
1. Jobs at bottom of ladder where performance is clearly not tied to politics—
sanitation, parks workers, etc. (Elrod started w/people at bottom).
2. Middle level where it’s hard to tell whether politics influence either b/c of quality
of work is somehow dependant on ideas or b/c supervise—teachers, Assistant
D.A.s, public defenders, etc; extremist politics might be a problem here—should
KKK members be prison guards?
3. On top of that are policy makers—mayors, department heads, cabinet members,
etc
iv. Inquiry isn’t whether position is “policymaker” or “confidential” but if the party
affiliation can be shown as approp requirement to effectively perform office: Branti v
Finkel
1. Facts: Public defender discharged his assistant based solely on political partisan
grounds
2. Held: Applied Elrod to protect D from bein fired. Neither asst public defender’s
policymaking nor access to confidential info had any bearing on partisan political
considerations.
v. Elrod & Branti extended to hiring decisions: Rutan v Republican
vi. Government can deny a job to employee who refuses to take oath that he opposes
violently overthrowing the government: Cole v Richardson (no const right to do that act,
so no right is infringed by being made to abide by it) activities
vii. A state employee can be fired for circulating a questionnaire regarding internal office
affairs: Connick v Myers
1. Facts: employee prepared questionnaire to solicit other employees’ opinions about
work environ & pressure to work in political campaigns
2. Held:
a. Must balance employee’s rights as citizen in commenting on public issues
w/state’s interest as employer in promoting efficient services.
 b. Though 1 issue in questionnaire touched on public issue, the
disruptiveness to office, employer’s authority, & work relationships
overweighed the limited 1st A interests here
d. Government compelled speech or association
i. Gov’t is forbidden to create barriers to association.
ii. Sup. Ct. having invented a 7th non-textual category w/in the 1st A, of association
1. Coulda derived it from Assembly
2. Almost none of the ideas in the 1st A have any meaning if people must act
individually)
iii. Can’t compel a manifestation of loyalty (can’t require affirmation of a belief & attitude):
West Virginia v. Barnett
1. Facts: kids at public school were made to salute flag, though their relig forbade it.
2. Held: unconst to force salute. No official can force confession of faith.
iv. Barnett implies right to speak carries with it the right not to speak, to remain silent, & be
able to resist gov’t pressure to speak in a certain way.
1. This cannot be an absolute right—inconsistent with majority rule. You file a tax
return whether or not you agree with the policies of the government.
2. Yet, only exception to the use of tax funds for anything is 1 st A—No
establishment of religion
v. The government can take money from you forcefully to advance ideas you might find
abhorrent. Ex:
1. Campaign Finance Reform: government can fund campaigns completely and
eliminate private money. Though I might not want my tax dollars spent toward
either candidate party, it’s just a specialized use of tax $ and as long as everybody
gets the $ equally (on viewpoint neutral basis). My $ isn’t funding a particular
group, it’s funding a process
2. IOLA
a. It’s: interest on lawyer’s accounts…where $ put in escrow w/your atty led
to interest in all accounts in the state bein very big, though interest in
single account is small & not worth trying to calculate & collect. So
interest cumulatively in state is paid into central pot & used to pay for
lawyers for the poor
b. Money is supposed to be spent in a viewpoint neutral way. Now that
computer programs can cheaply calculate interest on money in escrow, if
clients of law firm want the interest, & not to give it to poor…Sup Court
held this is a discernable property taking but not compensable.
3. Agency Shops/Union-free shops
a. Used to be (closed shop) that you had to join a Union as a condition of
employment. These were found unconstitutional in many circumstances.
The government can’t make you join a union.
b. Replaced by agency shop: you don’t have to join a union, but if you don’t
you’re a free rider because Union bargains for you. Thus you have to pay
dues, union is agent, & you have to support. Most courts say this is like
taxation; you may not like the entity that you are supporting & wanna
barg yourself, but Union is doing things for you
c. Yet, Sup Court has held it unconst when gov’t compels you to support an
institution and then institution uses money in ways you don’t like (ie
support political ideas that you don’t like), thru an agency-shop provision:
Abood v Detroit BOE
i. Facts: statute allowed agency shop provision in a CBA for
government employees, & teachers opposed it.
ii. Held: D can’t make Ps, as a condition of public employment,
contribute to support of ideological cause they may oppose. So
Ps get relief if they can show improper use of funds
 d. This doesn’t apply to shareholders of corporations (if shareholder doesn’t
like how corporation spends $ toward politics)…the diff is that
shareholding is voluntary
4. Interest in stimulating diverse ideas on campus outweighs interests of objecting
students: Board of Regents v Southworth
a. Facts: University of Wisc. runs a classic student activity fund. -- public
forum where the monies were disbursed to anyone, no limitations. Two
conservative students in the law school noticed that the $ was going to
groups they didn’t like. They wanted a pro-rata refund for the stuff that
was attributable to the groups they didn’t like
b. Held:
i. Didn’t constitute forced support of programs individuals didn’t
like (used tax analogy)
ii. Unlike a union, $ was given away on a viewpoint neutral basis.
vi. Note: The existence of a mediating institution that distributes the money on a viewpoint
neutral basis might make it okay
vii. Must make an arbitrary judgment about who will get 1st A protection. Several associations
available:
1. Offensive
a. U wanna associate w/something, but government won’t let U
b. In lunch club (fraternal org to make business deals) cases, w (those who
were excluded) got benefit of 1st A: Roberts v US Jaycees
i. Facts: org developed young m for activity in civi affairs &
excluded w from participation as regular members
ii. Held:
1. Org that’s basically unselective about membership can’t
exclude solely on basis of sex.
2. Impact on org’s protected speech is no greater than
needed to accomplish government purpose of eliminating
sex discr.
2. Defensive:
a. right not to be forced into a situation where U either support or appear to
support ideas U hate
b. ex: can’t be forced to salute flag if U don’t believe in those ideas that flag
saluting stand for.)
c. For every offensive association situations, there is a latent defensive
association. Whenever U force someone in for offensive reasons, U
violate the defensive association of the opponents in that situation. This
is the paradox in freedom of association cases: statute may be
inclusionary, but that goes against other person’s argument they have a
right not to associate & to exclude.
i. In Boy Scouts v Dale, the excluders got benefit of 1st A
1. Facts: 2 groups claimed to be true holder of 1st A rights.
Gay Eagle Scout was locked out. National Leadership of
Boy Scouts said we’re a private org, & we’re protected
from government telling us who to let in.
2. Held:
a. Because scout was openly gay, he’d be forcing
org to send message that Boy Scouts accepts
homosexual conduct, contrary to Boy Scouts’
views. Relied on Hurley
i. Facts: Gay marchers, who wanted to
walk behind group banner, locked out.
Parade controllers said we’re private &
protected from government intervention.
 ii. Held: whatever the reason for excluding,
speaker doesn’t hafta propound a
particular pt of view. So government
can’t compel parade controllers to
express gay marchers’ view.
b. Associations must merely engage in expression
in order to get 1st A protection (don’t hafta
associate for the purpose of disseminatin a
certain message)
viii. Political parties
1. Political party can’t exclude blacks as members for primary.
a. Sup Court said that because of relationship b/w primary & election, this
was de facto selection of who’d win.
b. So offensive association triumphed over the defensive association.
2. Political party also can’t form separate party to be able to exclude blacks for
primary elections (where U hafta be member to vote for election).
3. Unconst to take power away from a party the ability to determine its own
candidates: CA Democratic Party v Jones
a. Facts: CA had blanket primary system, letting citizens vote in primary of
any party regardless of party membership. Political parties claimed their
freedom of association was violated.
b. Held: unconst system. Such forced association would lead to changing a
party’s message.
e. Regulation of media
i. Intro: why a difficult 1st A issue
1. Involves robust 1st A & extremely strong private interests to combat that
2. limited # of radio & tv frequencies
2. speaker  conduit  hearer (target)
Censor (the government tryin to cut all this off)
3. ex of tension b/w these:
a. Cable broadcaster’s not a speaker in traditional sense. It’s not producing,
writing, or creating the material. It’s just choosing to send it to U though
another produces it. So is broadcaster a conduit or speaker? Or does it
matter?
b. telephone co takes speech made by someone else & lets it be heard by a
hearer. Everyone agrees phone co is a conduit, a common carrier & not a
speaker. But could a phone co be considered a censor sometimes?
c. Court says that newspapers are always the speaker, never the conduit. No
one else has the right to interfere & tell newspaper what to print
4. other concern: who’re we tryin to benefit? The hearer (audience)? Or the speaker
(artist/performer)? Or the conduit (common carrier)?
ii. “Right of reply” statutes
1. Ex: guaranteeing people right to reply in paper with, say, 500 words anytime there
was any allegation of wrongdoing
2. A state can’t require a newspaper to publish a reply to criticism made by paper:
Miami Herald v Tornillo
a. Facts: Miami Herald printed editorials critical of legislature candidate.
Candidate sued to force paper to publish his response under a FL “right of
reply” statute.
b. Held:
i. Compelling papers to publish material that they deem improper
for publication would be an unconst interference w/editorial
decisionmaking
ii. It’d also lead editors to avoid controversial subjects, to detriment
of public discussion
 3. Reasons such statutes compromise editorial integtiry: paper would refrain from
writin stuff it thought was true, & replies would take up space from other stories
& speakers.
iii. Fairness doctrine
1. FCC requires radio & tv broadcasters to provide broadcast time for 1) discussion
of public issues & 2) fair coverage for each side of issues presented.
2. Court indicates more regulation may be allowed for radio & tv broadcasting than
print media.
3. FCC fairness doctrine upheld: Red Lion v FCC
a. Facts: FCC orders required radio station to offer free broadcasting time to
opponents of political candidates or views endorsed by station, & to
anyone personally attacked, to reply. FCC would look at a station’s
fairness in covering both sides of issues, & if it didn’t, it could lose its
renewal license
b. Held:
i. viewed stations as conduits, not speakers, for certain things (is a
phys limit for tv & radio on # of frequencies that could be set
aside for this communication, unlike newspapers. Thus,
government must allocate those frequencies & can condition
choice on fair coverage of issues.)
ii. broadcaster can’t monopolize frequency, as viewers’ & listeners’
rights equal broadcaster’s rights. Broadcasters have obligations
as proxies for the community, so they can receive suitable access
to soc, ethical, political, etc ideas.
iii. It’s speculative, & hasn’t happened in past, to say fairness
doctrine will lead to self-censorship.
4. Notes:
a. unlike Miami Herald, Red Lion lets government pressure elec media to
say something it otherwise didn’t or otherwise wouldn’t.
b. Lately, Red Lion’s been losing strength. Now, the scarcity doctrine has
flipped. The more channels there are, the more they’ll compete w/each
other, & the less scarcity there is. And the more powerful the media is,
the less government should be allowed to regulate it.
5. Critique of fairness doctrine: FCC doesn’t keep close enough watch as many
violations go on, & only some randomly selected few are followed up on.
6. FCC denounced fairness doctrine in late 80s
iv. A government-regulated broadcaster may refuse to sell broadcast time for comment on
public issues: CBS v Democratic National Committee
1. Facts: DNC wanted to buy time on local radio affiliate of CBS which accepted
commercial, but not political, ads…they bothered people & made em change
channels, CBS claimed. DNC said it’s a 1st A violation for FCC to not assure that
people could buy ads on commercial media.
2. Held:
a. Treated station as speaker – they can choose not to sell time to people
b. The fairness doctrine makes broadcasters responsible for providing
balanced, public issues, yet the challenged policy came from independent
editorial decision & not mandated by government.
v. If there’s no FCC regulation, can’t force people to sell ad time. But it’s not clear whether
if there is a regulation if channels would hafta sell ad time to certain or all grps
vi. Cable
1. Government can regulate the cable operator from cutting relationship from
speaker & hearer when government strongly suspects that the cable’s stranglehold
over audiences will be used unfairly: Turner 1
a. Facts:
 i. rules were that cable broadcasting spectrum must carry 1) all
public broadcasting channels, 2) PEG (public access channels -
city hall type stuff), 3) leased access channels (someone
unconnected to the cable co can rent channel slots), 4) over the air
(must carry every local over-the-air channel, like CBS, NBC,
etc).
ii. TBS claims it’s a speaker, but government claims it’s a conduit
that wants to stamp out over-the-air stuff so it can compete
effectively
b. Held: 5 members (majority) of court say:
i. cable broadcasters are speakers most of the time, but they can act
as censors.
ii. If government shows enuff reason to show that gatekeeper
function will be carried out in an unfair way then government can
step in & force broadcasters to carry certain signals.
2. Turner II (after remand): upheld the must-carry provisions under the O’Brien
test.
3. Cable operators allow for targeted blocking, so government has heavy burden to
show that target blocking isn’t a less restrictive & feasible means to regulation:
US v Playboy
a. Facts: Telecommunications Act requires cable tv operators who have
channels mostly for sex programming either scramble or block em, &
when there’s signal bleed (where can be slightly heard or seen), to block it
except during safe harbor hrs that kids are unlikely to be viewing.
Playboy Channel challenged it.
b. Held: unconst provision
i. content-based so, strict scrutiny.
ii. But didn’t pass it. Signal bleed not sufficiently substantial to
imperil kids. And blocking upon request to subscriber might be
effective, less restrictive alternative.
4. It’s const for broadcaster to regulate leased access channels AS LONG AS it’s
sexual material at stake: Denver Area v FCC
a. Facts: Congress passes regulations under Cable Television Consumer
Protection & Competition Act:
i. 10a: any cable operator confronted w/a leased access channel
used in a patently offensive way to send out sexual material on
leased access channels can refuse to carry it.
ii. 10b: If it chooses not to block, cable carrier must provide for
opting in mechanism that U won’t get this channel unless U ask
for it
iii. 10c: gives same right of 10a to cable operators regarding public
access channels.
b. Held: 10a is const. But opting mechanisms 10b & 10c are struck down.
All under different rationales. If we wanna protect people from seein
what they don’t wanna, opt-out is sufficient (otherwise, would be big list
of people tryin to opt in to see the soft porn.)
vii. Internet
1. What should internet be treated as? A newspaper? Cable? TV station? To is it
unique w/its own aspects?
2. ACLU v Reno
a. Facts: CDA forbad indecent speech on the internet
b. Held:
i. Statute was poorly drawn & offensive, so struck down for
vagueness & overbreadth.
 ii. Internet hasn’t been supervised & regulated like broadcast
industry, nor is it as invasive (would unlikely come across
explicit content by accident on web, plus there’s usually
warnings). Isn’t scarce commodity…unlimited, lo-cost
communic that millions of people use.
viii. A candidate debate sponsored by a state-owned public tv broadcaster was nonpublic
forum subject to const restraints, but broadcaster’s decision to exclude the candidate was
reasonable: Arkansas v Forbes
1. was viewpoint neutral exercise of editorial discretion (wasn’t because of the
candidates’ views but because of lack of voter int in him)
2. candidate debates are different from other programming because:
a. was forum for political speech by candidates (so unlike even political talk
show & other shows, was implicit representation that the views of the
candidates were those of the broadcaster). Not a public forum.
b. Candidate debates are of particular significance in electoral process???
ix. Government (FCC) can regulate radio broadcast that’s indecent but not obscene: FCC v.
Pacifica
1. Facts: George Carlin monologue that strung together as many profane words as
possible; he was satirizing society’s attitude to words. Ran a warning that said
“profane warnings ahead; if you don’t like it, change the station.”
2. Held:
a. FCC’s order may lead some broadcasters to self-censor, but only patently
offensive content, which might be protected but surely lies at periphery of
1st A concern.
b. These words may be protected in other contexts. But broadcasting has
most limited 1st A protection of all types of communic, due to its ability to
penetrate privacy & be accessible to kids.
3. Notes:
a. Besides the fairness doctrine, need to protect public interest is another
way government may regulate.
b. There is something of Red Lion still alive. Government can do things
with electronic media that it can never do with the print media.
x. Media models
1. Hierarchy:
a. Print Media
b. Cable—only restrictions are gatekeeper from Turner I
c. Electronic—Pacifica, Red Lion, additional form of regulation
d. Internet--????
2. Why didn’t we adopt in the 1920s the same model we adopted in the 1890s for
telephone and telegraph for electronic media (radio, tv)?
a. The speech phenomenon has been divided into 2 components, the speaker
and the conduit.
b. The creator and the conduit were separate for most of our history. The
author and the publisher are two different people with two different
agendas.
c. Early efforts at censorship didn’t focus on the author but on the conduit.
You can write an pamphlet you want but you can’t publish and
disseminate it. So the people who control the dissemination don’t control
the content.
d. This begins to break down in the middle of the 19th century with the
invention of the rotary press and the mass newspapers. The creator and
conduit were the same person and same economic entity—newspaper—
the integrated model. The creator/conduit division remains in magazine
and book publishing. Magazines are getting closer and closer b/c they use
more in-house writers.
 e. Then the telegraph/telephone was invented. We rebuilt the same model of
speech up to newspapers—the bifurcated model. The creator is the
speaker.
i. Phone co. is conduit, which has a monopoly (Bells, Western
Union) in return for the conduit’s promise that it will only be a
common carrier
ii. We adopted the bifurcated model for the movies. The movie
producers are the creators and the owners of the theaters are the
disseminators.
f. Then radio. Choice b/n integrated and bifurcated models—both models
existed and worked. They chose the integrated model.
i. The owner of the station controls both the ability to disseminate
and what gets disseminated. In return for that the gov’t attempted
to keep hooks in the station owners (scarcity rationale).
ii. Licenses are temporary; licensees were under constant scrutiny
and were told that they were supposed to use the medium in the
public interest.
iii. There were limits on the number of licenses a single entity could
control.
iv. Also had cross-ownership rules—dominant station couldn’t be
owned by the same people who owned the local paper
g. Then tv. Adopted identical norms to radio
h. Then cable. Gatekeeper theory providing some ability to provide open
access through cable.
i. Adoption of the integrated model has led courts to treat these entities as
classic speakers, borrowing the newspaper model. All the cross
ownership/license restrictions are gone. They have been struck down.
What we have now is 7 large corporations that own all the
communications in the country. Everything has been integrated into a
speaker and there is no longer a conduit theory. This is a potent weapon
for deregulation.
f. Campaign financing
i. Can limit individuals’ contributions, but not expenditures, to a political candidate for
federal elections: Buckley v. Valeo:
1. Facts: comprehensive reform bill passed after Nixon administration: 4 parts:
a. Contribution Regulations: limited contributions (to $1,000 for primary, &
$1000 general election) to candidate. $25,000 cap to amount can
contribute to all candidates for federal office in a given year. A cap of
$40,000 on contributions to a specific political party. These are “hard
money” donations.
b. Expenditures: rigid and low limitations on what could be spent in each
campaign ($1000).
c. Disclosure: has 1st A problems like if certain cos give to Socialists or
Nader & then become known.
d. Subsidization: Candidates who meet a very low threshold of nationwide
support qualify for a certain amount of matching funds. In return they
have to promise they’ll stop spending when reach the ceiling. Most
candidates opt to receive it. Candidates get a flat subsidy for election
($66 million). Minor parties can get money—get a pro-rata subsidy based
on percentage of votes. New Parties get no subsidy b/c it has no track
record.
2. Held:
a. Contributions:
i. More $ doesn’t mean more speech. Contributions are indirect;
the contributor doesn’t speak. Speech is created by candidate &
 givin $ permits symbolic expression of support w/o undermining
to any material degree the potential for robust & effective
discussion of candidates & campaign issues.
ii. Unnecessary to look beyond act’s purpose (to limit actuality &
appearance of corruption from large indiv financial contribs) to
find sufficient justification for the contribution limit. There’s a
fear of quid pro quo b/w donators & candidates - bribe laws only
deal w/most blatant & specific attempts.
b. Expenditures:
i. Spending money to support a candidacy is classic 1st A activity.
Fuses the act of spending with the act of speaking
ii. Expenditure limits are content-neutral
iii. But they severely restrict political expression. Would exclude
most peeps from significant use of communication methods, cuz
it’d limit # issues, depth of exploration, & size of audience
reached thru media.
iv. Avoiding the danger of candidates’ dependence on large contribs
is served by the contribution limits & disclosure requirements.
v. Both candidates and unrelated individuals should have no
expenditure ceilings
vi. Only limit on expenditures is: ability to demand a quid pro quo
for government contribs (government can demand its own
contributed $ be spent in a certain way)
c. Congress may impose detailed reporting & disclosure requirements on
political contribution activity (will help deter corruption & facilitate
enforcement of contrib. limits). But must be a trap-door for controversial
candidates.
d. Congress may allow public financing of pres campaigns (the scheme
gives full funding for major parties only, but it helps minor parties)
3. In short, led to:
a. Equality is not a justification for cutting back the speech of the rich. You
have to hurt the poor voices, not silence the rich voices. Don’t achieve a
level playing field by stifling the voices of those who can speak too much.
b. The government claimed that it was trying to prevent the appearance and
actuality of corruption. This is a compelling governmental interest that
can be advanced by reasonable means. The limits on contribution are
such means.
c. Source of the $ can come from 1) government, 2) campaign candidates
themselves, or 3) general public. Union & corporate treasuries can’t give.
d. There can be spending to max, but can only raise $$$ in $1,000 chunks.
Spawned “soft $”
i. Hard $= contribs to a specific political candidate
ii. Soft $=Contributions outside of regulatory framework from the
sources that are forbidden to give in amounts. The money is
given to independent entities “People for more equal wage
process,” “People for lower taxes.” These entities then spend
money on campaign, often in coordination with the candidate.
Regulatory system is thus bypassed. The heart of McCain
Feingold is to shut this down (soft money contributions to
political parties.)
4. Problems:
a. maybe contribs should be more protected because it is an act of
association
b. maybe it shoulda been run through O’Brien instead of Brandenburg
 c. court took equality off the table as something that would justify
restrictions on speech…maybe it shoulda considered it, along
w/corruption.
d. Doesn’t really tackle corruption so well. Bribes and extortion are already
disallowed, & ceilings are so low – how could this really influence
someone?
5. Concur/Dissent (Burger): should not limit contributions, cuz would limit
political activity & debate…peeps spend $ cuz they wanna communicate
ideas.
6. Concur/Dissent (White): should limit expenditures, cuz it’d also help limit
corruption & equalize access to non-wealthy into polit arena.
ii. Some have begun to argue that election is a forum, and hence people who enter the forum
should abide by the restrictions of the forum
iii. Possible goals of campaign finance reform
1. Limit power of interest grps
2. Pub participation in democracy, so wanna improve system by givin peeps
more info.

II. Equal protection

A. Intro
a. 14th A: no state may deny to any person w/in its JD equal protection of the laws.
i. Equal protection generally means government regulation can’t be arbitrarily
discriminatory
ii. All laws to some extent are inherently unequal, because legisl distinguishes among people
iii. So equal protection requires, generally, that the classifications in statute be reasonable
b. 14th A equality clause – very open to interpretation. Could mean:
i. equality as far as an end or means
ii. treating people equally (givin all a right to vote), or differential treatment (because some
people, like the disabled, need more help than others to be a fair playing field)
iii. Uniform application of what the law says (if law says only whites can get benefit, that’s
how law will be applied), but this interpretation doesn’t get much court following
c. Could be read in different ways:
i. Originalism:
ii. Intentionalism
iii. Functionalism:
1. political process thry: look to give greater protection for grps that are excluded
from political process. (see fn 4 Carolene Products)
2. Lockner comes outta this
3. Problem: gotta identify w/what the process failure is
d. 2 types baseline for interpretation:
i. descriptive: “veterans means people who fight for nation”
ii. prescriptive: there are certain types of values that should matter
e. 3 tiers of standards of review
i. strict scrutiny:
1. For suspect classifications (race, etc) or fundamental interest (voting)…
classifications tend to have lack of political power, history of discr, & irrelevance
to performance.
2. Need “compelling” government interest & means “narrowly tailored” to realize
this.
ii. heightened or intermediate scrutiny:
1. For gender, alienage, illegitimacy
2. Need be “substantially” related to “important” government interest
iii. rational basis review/scrutiny:
1. When no suspect classification or fundamental right
 2. Any conceivable purpose will “reasonably or plausibly” related to “legit”
government purpose.
f. Overinclusive=covers the target pop but also innocent people (Overinclusiveness might be closer
to equality)
g. Underinclusive=covers only some of the target pop
h. Due Process vs. Equal Protection
i. DP was never to help challenge the established disadvantage – whereas EPC has always
been meant for this kind of use. DP is used to look at the process.
ii. EPC applied through federal and state through due process clauses in 14th and 5th.
iii. Reverse incorporation – 14th is incorporated into 5th, and 14th applied to federal gov
through 5th.
iv. Procedural DP: Right to fair process. You presume an existing right (e.g. property
interest) – then the question is by what procedure can state deny it to you or take it away?
v. Substantive DP: Basis for finding certain interest, in terms of liberty
1. ex: right to privacy (reproduction, divorce) – whether constitutional right to
privacy is also extended to homosexual sodomy right in context of private home
in Bowers.
2. ex: Lochner– whether liberty under DPC also gives you right to be free from
interference in political participation.
B. Equal protection & rational basis review
a. Equal protection isn’t a license for courts to judge the wisdom, fairness, or logic of legisl choices:
FCC v Beach Communications
i. Facts: FCC administers Cable Act. Under act, facilities servin 1 or more bldgs under
common ownership/management are except from regulation if they don’t use public
rights-of-way, while facilities servin separately owned/managed bldgs aren’t except. FCC
interpreted cable system to apply to satellite master antenna tv facilities.
ii. Held:
1. classifications have strong presumption of validity on rational basis review.
Reason for such a deferential standard: stupid policies will be changed by the
democratic process itself. Unless there’s some reason to doubt that the political
process can fix itself, no need for court to come in. Legisl needs a broad area to
regulate.
2. Esp where legisl must engage in line-drawing (here, are 2 possible bases for
common-ownership distinction, & either’s sufficient), the precise placement of
line is a legisl & not a judicial concern. So a scope-of-coverage provision is const
if it has a rational basis.
iii. Problem: if the court upholds the law because there’s any rational reason, but it wasn’t the
legislature’s stated reason for the law, then that’s not supporting the legislatures’ process.
That’s not fostering legislation or enhancing the democratic process.
b. A business regulation may make distinctions based on practical considerations though the
distinctions are conceptually discriminatory: Railway Express v NY
i. Facts: NY law said it’s ok if U own a car & put ads for own business on vehicle but can’t
put ads for another business on your vehicle…for avoidin distractions. Business sold
space on its trucks for advertisin by other businesses & was convicted. Law is challenged
for violatin equal protection because is underinclusive – will be distracting regardless.
ii. Held: Under rational review, ads may not present the same scope of distraction. Purpose
is defined in terms of traffic safety only, & doesn’t matter if there’s theoretical
inconsistencies.
iii. Jackson concurrence: it’s meaningful to make distinction b/w things for hire & not for
hire. So maybe legisl also wanted to respect prop rights – which woulda made law more
directly related to the purpose.
c. Recent holdings of irrationality
i. EPC violation when commission scheduled employment discr hearing date after the
statutory time period expired: Logan v Zimmerman (terminating a claim that the state
misscheduled can’t be a rational way of expediting resolution of disputes)
 ii. EPC violation when tax assessments led to huge disparities in assessed value depending
on when your prop was sold, since purpose according to state was to have fair & equal tax
system: Allegheny Coal
1. But: valuing property leading in huge tax disparities of properties of comparable
value wasn’t an EPC violation: Nordlinger v Hahn (was enacted for preserving
communities)
a. Inconsistent w/Logan: why should it matter that a state has stated its
purpose, under rational review? (Which case DIDN’T state its
purpose?)
d. Homosexuality
i. No fundamental const right to engage in consensual homosexual sodomy: Bowers v
Hardwick
1. there’s right of privacy for child rearing & educ, fam relationships, procreation,
contraception, & abortion, but there’s no const right to engage in any kind of
private sex conduct
2. homosexual sodomy isn’t needed either for liberty or justice
ii. Unconst to deny protected special status or protect to homosexuality: Romer v Evans
1. Facts: Amen 2 of CO Const said: Neither state nor subdivision could enact or
enforce regulation where homosexual conduct, orientation, relation could get any
special status or protection.
2. Held: unconst under rationality of review.
a. Too much breadth & not enough tailoring. It was drawn to hold back a
group, not merely deny it special rights.
b. It hinders em getting specific legal protection for discr, housing, real
estate, insurance, health services, educ, employment…in both private &
public sphere.
3. Scalia dissent: purpose is to preserve trad sexual moray, a legit government
purpose, & government is expressing just disapproval & not hostility to gays
iii. Note: Is the Court really engaging in rationality review?
1. Bowers said condemnation of gays is ok because they’re an unpopular grp. So the
court could say that a rational purpose is to target gays – that’s in our nation’s
history
2. In Romer, Scalia says it’s ok to prevent politically powerful grp from havin local
power
3. Romer created a diff b/w rational basis & intermediate scrutiny – which is rational
basis with teeth
e. Mental retardation’s not a suspect class for EPC: Cleburne v Cleburne
i. Facts: Need to get permit for grp home of mentally retarded, but not needed for many
other grp homes (except for drug treatment, etc).
ii. Held:
1. Don’t need heightened scrutiny.
a. There’s lack of political prejudice.
b. And they’re not politically powerless, because have protection measures
(statute protects em).
c. Mental retarded have real & diverse problems, immutably different,
needin professional advice to inform legisl assistance
d. Plus, how would other people w/characteristics like AIDS, otherwise
disabled, etc, be distinguished? Needs to be a limit.
i. (Think: Political process theory (Carolina Products fn) – idea that
they’re an immutable, IDable trait, and a insular and discrete
minority that deserves political protection.)
2. But, rational basis isn’t satisfied here. Because it’s underinclusive – lotsa other
groups don’t need permit under the ordinance (flooding, fire, overcrowding, other
purposes of permit should apply also to other grps, such as nursing homes for
 aged, boarding houses, etc.) And neg prop values of neighbors isn’t legit basis for
the statute. No rational relationship to any government purpose.
3. Also, using givin special protection here under rational review might lead to
under-enforcement by the judiciary – institutional role rationality. (RR gives
greater discretion to Congress)
iii. Marshall dissent:
1. how much can you take these characteristics out of the historical and social
context? There’s reason that we have discrimination statutes – endemic system of
racism, etc
2. instead of majority’s 3-tiered structure(??? – there are 4), thinks there should be a
sliding scale (balancing constitutional values and interests at stake) – level of
scrutiny should reflect the invidiousness of the basis of classification.
iv. Notes:
1. maybe Court wasn’t applying rationality review because court wasn’t so
deferential
2. may be 3 approaches:
a. Sliding scale – allows flexibility & consideration of differences on a fact-
by-fact basis. Problem is implementation.
b. 3-tiered scrutiny
c. All rationality – more like “I know it when I see it” type of rationality
f. ADA: Garrett
i. Congress doesn’t have power to pass this law that makes states liable in private actions for
failure to reasonably accommodate disabled.
ii. Just hafta satisfy reasonable review, which gives greater discretion to Congress.
iii. Accommodations can be expensive
g. Age discr:
i. law requiring uniformed state cops to retire at 50 upheld under rational basis standard:
MA v Murgia
1. Old age isn’t discrete & insular grp who’s experienced history of purposeful
unequal treatment (plus, it’s really for middle-aged cops)
2. Right of government employment isn’t so fundamental to subject it to strict
scrutiny
ii. age has never been viewed as a suspect category b/c we’re all going to be old some day,
they aren’t necessarily politically disadvantaged.
iii. In fact the elderly vote more than anyone else; they have a lot of political power
iv. There is no political constituency of children; they aren’t represented either, nor are they
specially protected.
h. Wealth discr:
i. law requiring low-rent housing project to be constructed only if there’s local approval was
upheld under rational basis: James v Valtierra
1. need referendum for low-income housing, not for other housing – this is clearly
targeting the poor
2. lawmaking procedure that disadvantages a particular grp doesn’t always deny
equal protection
ii. System of financing public educ that closely correlates spending per pupil & value of
local taxable property is subject to rational review: San Antonio v. Rodriguez
1. Facts: Public educ financing system in TX was typical of school funding – there
was a state fund and the local districts also contributed (Individual schools could
spend additional money they raised through property taxes.) System had state &
local expenditures vary per pupil accordin to mkt value of taxable prop per pupil.
2. Held:
a. System might discr against indigents, poor people, or people who reside
in poorer school districts. No absolute deprivation, only relative
inequalities between wealth. EPC doesn’t require absolute equality.
b. Here, there’s wealth+ (+ being education).
 c. Educ is impt but not a fundamental right for EPC purposes. It’s not
explicitly or implicitly guaranteed in Const. And system here extends &
improves educ, not interferin w/providing kids w/basic skills.
d. No evidence that the 1st 2 grps are discr against (poor aren’t getting no
public educ, just relatively worse than other kids are), & 3 rd grp isn’t a
suspect class.
e. Courts also shouldn’t interfere w/state fiscal policies unless necessary.
this system of funding is rational because it controls local participation.
f. In short, Court prefers localized decisions & lower scrutiny for qs of taxes
& educ.
3. Dissents: law not rational, because poor districts don’t have same ability for local
control.
a. Marshall applies sliding scale analysis – discrimination that affects
education should be subject to stricter scrutiny – education fundamentally
related to basic constitutional values.
4. Note: court argues that absolute deprivation should be protected by EP, but
relative inequality is okay. Is this valid?
a. Seems to be formalistic – if one person is given whole pie and other
person is given mere crumbs, the crumb-recipient would not be
considered to need EP – he has SOMETHING. There’s no absolute
deprivation, but near-absolute deprivation. How to reconcile?
b. Relative deprivation may be subject to more danger than absolute
deprivation – absolute deprivation is a blatant violation of EPC, but
usually, relative inequalities are perpetuated. Realistically, relative
inequality will make a huge difference in life opportunities.
5. Another problem w/seeing if wealth discrimination should trigger a heightened
review: What is wealth discrimination?
6. Note: Court seems to be saying that the right has to be defined as a fundamental
right elsewhere in the Constitution, or it won’t recognize that right (interpreting
EPC to not carry any independent rights).
7. After San Antonio in state courts, people switched to state constitution. State
constitution usually guarantees some right to adequate or equal education.
C. Equal protection & heightened scrutiny
a. Race & ethnicity
i. History
1. formal equality cases are the beginning – laws codify unequal relationships of any
kind, and it is impossible to achieve true equality while formal inequality exists
2. The history of the 14th amendment begins in 1619 with Somerset’s case
a. Plantation owners would return to England with their slaves. This created
an issue in that England had powerful anti-slavery laws. The manservant
runs away from one planter who came to London and protected by
Quakers.
b. Quakers brought a writ of habeas corpus before the King’s Bench, saying
slavery is unlawful under law of England and the governing law is not
that of Virginia (up until now foreign countries had applied the law of the
foreign soil) but Britain – the courts of a free nation should never be
forced to enforce the laws of a slave nation.
c. Quakers win. when the courts of a forum state are asked to pass of the
legality of a master-slave relationship, that you apply the law of the forum
state to decide the relationship – in other words, if you bring slave to a
free state and that state has access to law (doubtful), the law which must
be applied is the law of the forum state.
d. This scared slave owners in US – it would be a rare case in which a
Virginia slave could invoke a British court, but not inconceivable that he
could request out of the New York court.
 3. Dred Scott v Sandford
a. Facts: a slave was taken voluntarily into free territory. He was then
brought back, involuntarily into a slave jurisdiction. He argued that once
he was taken into the free territory he was free, that freedom attached to
him and that the slave states would have to apply the law of the free state.
b. Held: Constitution said that black people were not citizens of the state in
which they resided and thus there was no diversity jurisdiction – hence
they dismiss for lack of diversity jurisdiction
c. Notes:
i. 14th amendment was drafted to reverse Dred Scot – every person
is a citizen of the state in which they reside.
ii. Thirteenth frees the slaves and the fourteenth made them citizens.
iii. Racial classifications are suspect – so need strict scrutiny.
iv. Types of race discr:
1. unequal burdens
2. restrict interaction b/w races
3. gather & disseminate racial info
4. may come from: express statement, discr enforcement of
neutral law, or when neutral law’s motivated by race
considerations
ii. Next steps
1. State statute preventing blacks from serving on juries violated equality of the 14 th
amendment: Strauder v WV
2. Race may be used as criteria for curtailing civ rights in time of grave threats to
national security: Korematsu v US
a. Facts: concentration camp case during WWII. Army command required
people of Japanese ancestry be excluded from certain areas for national
defense reasons. D convicted for bein in military area, though wasn’t
accused of disloyalty.
b. Held: passes strict scrutiny (Need compelling need and can’t be
overbroad.) Existence of Japanese sympathizers was a threat. Nothing
less than excluding entire group would solve problem of disloyalty,
espionage, & sabotage.
c. Note: may be the only case in which the government has satisfied strict
scrutiny in harming a racial group.
3. Statute preventing interracial marriages violates 14 th A: Loving v. Virginia
a. Though state claims there’s equal protection when there are penalties of
interracial offenses because it’s applied equally to members of both races,
equal protection means more than just equal application.
b. No legit overriding government purpose shown here other than racial
discr, to preserve white racial pride.
4. Denial of child custody to white mother because new husband’s black violated
EPC: Palmore v Sidoti
a. Facts: woman who had a child with first husband and both of them are
white. Custody of child given to wife. She remarries a black male. The
child will be raised in interracial household. Father comes back and says
it will be a hell to live in interracial household in South Florida
b. Held: risk of pressures of interracial household don’t justify removing
infant child from custody of natural mom who’s found approp otherwise
to have such custody.
iii. 14th A: where should we draw the line? Different levels:
1. Purpose: Must there be a purposeful effort to treat a racial group worse (ie not let
blacks serve on juries)
a. Proof of knowledge can infer purpose. So, purpose might be established
by lower types of standards
 b. Intent is hard to find. And it might not make sense when talking about
entities other than individual people (ie a government agency forming test
qs, like in Washington v Davis)
2. Knowledge: knowing that this law about to be passed will adversely affect a racial
group (that is, have a racial disparate effect)
3. Recklessness: not conducting an investigation as to what effects will be
a. Tort standards like reckl & neg are theoretically attractive, but in reality
are like the purpose test – those all get to the purpose idea
4. Negligence: not paying attn
a. Tort standards like reckl & neg are theoretically attractive, but in reality
are like the purpose test – those all get to the purpose idea
5. SL: no matter how hard you look or what U do, it harms racial group in
disparately proportional way
a. This is effects test.
b. Problem: would simply destabilize too many laws
iv. 2 types of possible liabilities
1. retrospective liability: damages
2. prospective liability: injunction
a. Prospective relief may tilt toward a much gentler standard to test it (ie neg
instead of purpose) – so that whatever the reason, just try to put
something better in place to fix something that appears to be broken
v. Effect jurisprudence tends to be the jurisprudence of the reform
vi. Intent jurisprudence tends to be the jurisprudence of the status quo
vii. De jure v De Facto discr
1. Discriminatory application of a statute that’s neutral on its face is EPC violation:
Yick Wo v. Hopkins
a. Facts: City ordinance required laundries in wooden bldgs must be
licensed before operating. Hundreds of Chinese laundrymen were denied
permits, while virtually all non-Chinese who operated Laundromats under
similar conditions got permits.
b. Held: was applied unequally (disproportionate and overwhelming effect
on one group) & no justification was shown.
c. Note: case said 14th amendment is not limited to blacks as newly freed
slaves.
2. Need both discriminatory intent and impact to be able to bring race case under
Constitution: Washington v Davis
a. Facts:
i. DC is mostly a black city, w/white cop force. Tests used for
force are passed much more by white applicants than blacks.
ii. P challenges legality of tests used to fill vacancies in cop dept. &
argued the tests violate Equal Protection Clause. Government
chose to use test that’s more severe for blacks, & tests themselves
(which test stuff like verbal skills & stuff that people deprived of
good education may not score as hi on) don’t test what’s needed
to be a good cop. Result is, P claims, a dramatic exclusion of
blacks from cop force, because government has criteria for access
to a job which fall disproportionately on people & aren’t needed
to perform the job well.
iii. City defends that they thought they’re good qs & disparate impact
isn’t enough…they’re usin the qs to get the best force, not to
exclude blacks…there’s no discr purpose.
b. Held:
i. Favored an intent / purpose test (either on statute face or in its
application) for proof. Disparate impact claim no longer enough
for Ps to win such cases. (If it was, all things like subway fares &
 taxes could be struck down because race & poverty are linked &
so many things fall unequally on poor people, who are
disproportionately racial minorities.)
ii. When there’s a disparate racial impact hsown, government must
show law’s neutral on its face & serves proper government ends,
but the burden’s not hi.
iii. Here, test is reasonably related to job requirements & city
affirmatively recruited black cops (indicating lack of intent to
discr).
iv. So, a job test that’s not been established as reliable measure of
job performance & fails higher % of bl than wh doesn’t violate
EPC
c. Note: Maybe a standard b/w reckl & neg is best, to make people think
about the law (ie are the cop test qs necessary?) But after Davis, has been
no real exploration of such an an intermediate standard
3. Must show that racially discr purpose was at least a motivating factor in order to
win on an EPC claim: Arlington Heights v MHDC
a. Facts: housing co applied to city for rezoning to build lo-income units for
tenants, many who’d be racial minorities, & app was denied.
b. Held:
i. Disparate impact isn’t enough, as Davis held. Need some
purpose – not that the action has to rest solely on a race discr
purpose, but that such a purpose is a. motivating factor in the
decision.
ii. Here, the zoning policies existed long before P’s app, & other
proposals not involving minorities have been rejected in the same
way. So, denial of zoning request that disparately affects racial
minorities but made pursuant to standard procedures doesn’t
violate EPC.
4. Adverse effect to minorities from action undertaken for legit purpose doesn’t
violate const: Memphis v Green
a. Facts: Street ran from bl to wh neighborhood. Street was closed, for
crime & traffic control.
b. Held:
i. P’s prop value wasn’t affected & would cause some
inconvenience. But the inconvenience is due to where he lives,
not his race.
ii. Also, was done for legit purpose, thru fair decisionmaking
procedures.
viii. Law that prevented any ordinance dealin w/discr in housing w.o approval of majority of
city voters violated EPC: Hunter v Erickson (treated all races identically on its face, but
its impact fell on minority because it placed special burdens on em in government
process)
ix. Formula for 1st A (Brandenberg) & formula for race-based EPC cases are very similar, as
court requires someone to carry big burden of proof for justification
x. Affirm action
1. Problem w/ totally getting rid of race classifications is that 14 th A is supposed to
protect against the majority against minority
2. Remedial efforts to end race-conscious discr that has occurred in past is const
3. Once past race discr is found (and purpose is proven, as it always must be, under
Davis), the new law still goes thru strict scrutiny. Is compelling government int to
get rid of race discr, so as long as remedy is linked (tailored) to getting rid of that,
the new law will stand.
4. If D admits discr, court can use either SP (ie put in an affirmative action plan) or
remedies. But D’s atty doesn’t want to admit wrongdoing, because of collateral
 estoppel (so that a whole bunch of other potential Ps (like all black people at that
plant) don’t come along & sue). So Ds that settle always claim there was no
admittance of wrongdoing.
5. What do we mean by affirmative action?
a. Quota – a NUMBER that’s used to change the situation & demands a
particular result
i. Ex: altering odds of promotion based on race
ii. Arg in support: workers who achieved that level of current status
as a result of past discriminatory purpose have no right to claim
that platform for future consideration. They were involuntary
beneficiaries, so regardless of their fault/intent, it’s ok to ‘take
away’ their promotions.
iii. Arg against: defining the group that you’re giving the benefit to
now is an amorphous thing to do. If someone just came into town
(or immigrant) and is at the entry level, they never got the benefit.
iv. courts are nervous about taking away existing jobs. But they’re
much more forgiving of promotion cases
b. Preference – some advantage, but not requiring a particular outcome.
argument that it compensates for social mechanisms
c. Tie Breaker – a tipping factor
i. Arg for it: if you have two equally qualified people trying to same
job and you have to make a judgment, race should be a tipping
factor (because race has been a tipping factor frequently in the
past in the other direction, that it’s morally justifiable)
d. Outreach/recruiting - be vigorous in attempting to attract minorities
e. Questioning criteria - Asking if the criteria themselves are a result of
thought processes that have been tainted by the society we live in.
i. Esp used for soft criteria (about having good personality, or about
getting the interview to begin with)
6. 2 kinds jobs:
a. performance depends upon competence: you want just someone who is
qualified
b. performance depends upon excellence: There may be jobs in which you
want the best possible person to do it (You don’t need the top race driver
to drive a bus.) Affirmative action may get in the way of these & be
harder to defend – but even then, tie breaker, outreach, and questioning
criteria might be morally justifiable
7. For political model (including education and politics), unless there are provable
acts of discrimination and not societal wrongs, Supreme Court has said that
government can’t impose affirmative action as a remedial tool. Must show
discrete acts and not large societal acts –or else the regulation won’t survive
8. Central legal question: in any setting (employment, education, political) that you
want to consider race-based remedial criteria, is there a kind of unjust enrichment
(that is, possession by the white beneficiaries of past discrimination) that puts
them in a current position that they really have no right to hold?
9. Can think about affirmative action as remedy for past discrimination, or can think
about it as repairing the future (that idea 1st comes up in Bakke)
10. Education: A state school may use race as one of many factors in its admissions
process: Regents of U. of CA v Bakke
a. Facts: Med school denied P admission for 2 yrs, & had regular & special
(to help minorities) admissions programs. P (white) claimed he didn’t get
consideration for places reserved for minorities.
b. Held:
i. is subject to strict scrutiny, because it disadvantages a group
(whites).
 ii. Doesn’t pass scrutiny: The diversity interest is valid (diverse
institution would educate better, making society better), as he
sees affirmative action that looks forward and not backward. Yet
the means are inadequate. Can’t reserve fixed # of seats to a
minority group, but can consider race among other of applicants’
characteristics. Could use race as a criteria but not the criteria
11. Minority preference in teacher lay-offs was unconst: Wygant v Jackson
a. Facts: school board, due to budget crisis, laid off more sr white teachers
to retain less sr. minority teachers.
b. Held (plurality):
i. Race-based prefs are subject to strict scrutiny
ii. Even if trying to compensate for past school board discr, burden
on innocent parties is too great...it’s not narrowly tailored.
12. When no evidence of direct discr on part of city or its prime contractors, can’t
adopt set-aside program favoring minority-owned contractors: Richmond v J.A.
Croson
a. Facts: minority businesses had received lower % of contracts than
minorities living in city. City made prime contractors on city projects set
30% of subcontracts aside to minority businesses.
b. Held:
i. Objective of 14th A was to limit states’ use of race as criterion for
legisl action.
ii. Government can eradicate effects of private discr, only if it shows
it’d become a “passive participant” in a system of racial
exclusion.
iii. 14th A requires strict scrutiny of all race-based action by state &
local governments.
iv. A court can’t assess whether a plan’s narrowly tailored to remedy
past discr if not linked to identified discr.
1. City didn’t show w/particularity discr in contract
business.
2. City’s plan included other groups (Spanish speaking,
Eskimo, etc) w/no evidence of discr in construction
industry for em…suggesting city’s purpose wasn’t to
remedy past discr.
13. Congress could adopt a policy of minority broadcast license ownership as means
for achieving greater programming diversity: Metro Broadcasting v FCC
a. Facts: minority ownership was a factor in whether FCC gave applicant a
license, not to remedially compensate for past discr, but because
minorities were inadequately represented in broadcasting
b. Held:
i. Benign racial classifications require only intermediate scrutiny.
ii. policies were substantially related to serving impt government
interests (passed intermediate scrutiny).
14. Fed government’s use of race-based classifications is subject to strict scrutiny
even for affirm action: Adarand v Pena
a. Metro held that benign racial classifications require only intermediate
scrutiny. This undermined the principle that 5th & 14th A protect persons,
not grps.
b. Grp classifications need detailed inquiry to ensure that personal rights
weren’t infringed. Benign racial classifications must be treated like other
racial classifications – and all are now subject to strict scrutiny.
15. Legislative Representation & redistricting for voting purposes
a. In the old days, accepted wisdom was that in order to assure blacks will
be able to elect blacks was that you needed 70% blacks in district – so
 you’d end up packing large numbers of black voters in district to ensure
their turnout. Civil rights groups argued for packing like this to allow
minorities to elect minority representatives. results in legislature in which
blacks are represented for the first time but are the minority – this model
caused minorities to be outvoted at the legislature level.
b. New Model: Influential districting. Spread out minorities so that they will
be the swing voters – e.g. political participation of Jews. BUT,
black/minority representatives rarely come out of predominantly white
districts – they still come out of packed districts.
c. State legisl can’t create a voting district solely to segregate voters into sep
voting districts based on their race: Shaw v Reno
i. Facts: drew a district to unite black population centers.
ii. Held:
1. Redistricting legisl here is bizarre on its face,
unexplainable except for race, so needs strict scrutiny.
2. Has appearance of political apartheid to put groups of
people together who have just race in common…
stereotyping em that they think & vote alike, & reinforces
belief that citizens should be judged by skin color.
3. You can consider race but where race is the only or
dominant factor in drawing the lines, the lines are
unconstitutional. If race played a motivating role but
there were other factors that played dominant roles as
well, then it’s constitutional.
4. number doesn’t matter (whether it’s 48% or 52% of
blacks put in a district, hoping to get some white voters) –
it’s whether race is used as dominant factor.
iii. Note: QUESTION in Davis would’ve been: Was race a motive?
If so, unconstitutional. Here, question is: Is race the dominant
motive?
d. A state can’t use race as primary factor in designing reapportionment
districts: Miller v Johnson
i. Shaw doesn’t require that the challenged district be bizarre on its
face. Shape is just evidence of intent to use race for its own sake.
ii. P has burden to show that race was main factor motivating legisl
decision to place significant voters w/in or out of a particular
district.
iii. Here, objective was to maximize majority-black districts, which
isn’t required by the Voting Rights Act, so the state’s int wasn’t
compelling enough. The state used the act to demand the same
kind of racial stereotyping that the 14th A forbids.
e. In short, Sup Court has rejected districts where race appears to be the
dominant role in forming it – but it can play some role
f. If you can PROVE that lines are being drawn to minimize black voting
potential (gerrymandering), then you have a claim. VERY hard to prove
such intent
g. With technology, we can define geography any way we want. Now it’s
much easier to swing the votes and defeat incumbents – more fluid lines,
more fluid voting.
h. Race is no longer useable. What else could be to drive legisl
apportioning?
i. Democrats?
ii. Poor/econ status?
iii. Incumbents: Party solidarity and incumbent stability are
legitimate to apportionment methods, but race is not (SCt upheld
 lines drawn in advance so that 6 Democrats and 6 Republicans
are voted)
i. Other tactics
i. Bullet voting –
1. if you allow bullet voting in at-large situation, people
don’t get to vote for four people – even though there are
four slots, everyone can only cast one vote
2. usually allows a minority group within a large, multi-
member district to still elect one minority member
ii. Accumulative voting
1. people within much larger geographic areas organizing
and casting votes any way they want – minorities
accumulate their votes and vote for their candidate. Gets
best representation that they can themselves, without
drawing lines that formally divide groups.
2. This is principal recommendation of black groups
iii. Apportionment representation makes it much easier to get
majority in government and coalition government building that
makes it harder for stability
iv. Single transferable voting – you cast first preference and second
preference – if your single preference doesn’t win, your second
preference counts. So if you cast Nader 1 and Gore 2, and if
Nader doesn’t win, then your vote counts for Gore. This allows
people to challenge existing party constituency. Also allows
politicians to have reign over much larger population.
b. Special problem of educational apartheid
i. Separate but equal allowed: Plessy v Ferguson
1. Facts: P (1/8 bl) refused to sit in black railway carriage. State stuatute required
sep railway carriages for wh & bl.
2. Held:
a. Law doesn’t imply inferiority of 1 race or other. only restraint on state
police power is that it’s reasonable & intended for promoting general
good. State legisl may’ve concluded it’d preserve public order.
b. It’s no worse under 14th A than sep schools, which’re accepted.
c. Legisl can’t overcome soc prejudices. Const can equate civil & political
rights of races, but not affect soc standing.
3. Major premise – you can’t harm minority race. Efforts to harm minority race are
invalid
4. Minor premise – separate but equal doesn’t harm  segregation is constitutional
ii. More subtle reading of 14th – even if facially valid, if in fact it makes things much worse
or (as in Brown) is intended to stigmatize minority race in a way that reinforces its
subordinate position, then unconstitutional.
iii. Sep but equal schools on basis of race illegal: Brown v Board
1. Facts: sep but equal doctrine is that state facilities, including public schools, can
be racially seg, if they provided “equal” services.
2. Held:
a. Even if wh & bl schools are equal in tangible factors, there’s an invidious
(offensive) effect when they’re segregated. It creates feeling of inferiority
that may hurt kids’ motivation to learn.
b. So, sep educ facilities are inherently unequal, & violate equal protection.
That is, it violates 14th A for states to impose segregation on schools
c. Applies to secondary & primary schools.
3. Major premise – not changed all that much. You can’t harm racial minorities by
imposing legal criteria on them that harm them
 4. Minor premise – this changed. Segregation DOES harm racial minorities by
reinforcing sense of subordination, second-class citizenship
5. Notes on judicial role
a. What’s the nature of jud role in this case? not necessarily that bl people
need wh people in class to learn, but maybe that funds on all black
schools will be less than wh schools.
b. Brown failed in the sense that integrated educ should continue up thru
levels (ie no power for busing people who lived far away)…court woulda
had to get really involved.
6. aftermath
a. Use of public funds for parochial education really to enforce Brown.
Schools that have continued to try to provide quality integrated services
for inner city communities have been Catholic schools. Protestant and
Jewish schools have fled
b. Brown created an aspiration into which MLK stepped in. Brown alone
does nothing, but it creates the momentum  Title VII, voting rights act,
etc
7. Thomas says Brown is result of an unconscious racism and idea that blacks need
whites to feel equal. Nothing wrong with “separate but equal” – at the time,
there was “separate” but NOT “equal”
8. Latent way to think about Brown:
a. What was wrong about Brown wasn’t that blacks needed whites to be
equal
b. gov essentially prevented an interaction of people that is needed to create
a community where democratic society survives
c. Refusing people on either side of that line to interact with each other to
learn about the other is the evil
d. law should never prevent association - Doing so is to prevent human
interactions that may well be better thought of.
e. you can’t FORCE association. Law as a way of altering/remaking human
behavior or reinforcing the worst aspects of human behavior doesn’t work
iv. Threats of violence resulting from state actions against desegregation woulnd’t justify
failure to integrate public schools: Cooper v Aaron
v. Remedying segregation:
1. District courts can order compliance w/their own desegregation plans when local
school authorities fail to voluntarily desegregate: Swann v Charlotte-
Mecklenburg
a. Judicial authority to remedy violations expands when local authority
defaults
b. Are 4 student assignment problems:
i. Extent to which racial quotas may be used to correct seg. (Can
use, in limited way, racial quotas to shape school system toward
racial composition of school system, though each school doesn’t
hafta reflect racial composition of system as a whole.)
ii. Elimination of 1-race schools (demographic factors may result in
these, & these aren’t certain indications of imposed seg)
iii. Remedial altering of attendance zones (gerrymandering can be
useful)
iv. Transporting students to de-segregate (can provide optional
transfer, if transportation is free, to be effective)
2. Courts must consider the # of all minority grps (not just blacks) who’ve suffered
unequal educ treatment when determining if a school is segregated: Keyes v
School Distict
a. When a school district doesn’t have a history or illegally imposed seg, to
make a pf case of illegal seg intent, P must show intentional acts by
 school authorities intended to seg schools & actual existence of
segregated schools.
b. When P makes pf case, D can rebut by showin no seg intent even partially
motivated their aactions, or that even if D hadn’t acted as such there
wouldn’t be a lesser degree of seg (that past seg didn’t contribute to
current seg condition)
c. Can’t separate minorities (in this case, bl & Hispanics) who’re subject to
similar disadvantages.
3. Proof of purposeful, effective maintenance of sep black schools in a substantial
part of a school system is sufficient to establish a pf case of an unconst seg
system: Columbus v Penick
a. Disparate impact & foreseeable conseqs of D’s actions don’t establish
improper motive, but are relevant evidence. Show pf case.
b. D didn’t rebut such evidence. So, a system-wide remedy’s approp.
c. Gender
i. Intro
1. there are now about 5 levels of scrutiny (rational, rational w/teeth (Romer)
intermediate, higher level of intermediate, & strict…but Court claims there’s just
rational, intermediate, & strict
2. EPC could be all about race. Textualists can’t hold it to race, because only 15 th
A, not 14th A, discusses race in the text. But its historical genesis is all about
protecting racial subordination.
3. Instead of race, immutable characteristics that weren’t chosen (gender, race,
illiegitmacy, alienage) is what it became understood as. Sup Court hasn’t become
persuaded by sexual preference as another category, because Court holds it’s a
preference & thus a choice…not a non-chosen category
4. Races treated difftly is usually very suspect – due to bias/assumption that can’t be
empirically defended. Yet, unlike race, are biological differences that aren’t so
trivial
5. Fn 4 Carolene products: minorities whose targets are prejudiced aren’t represented
as much in political process. That’s what EPC tries to ameliorate. Yet, under a
thry of democratic failure, gender becomes difficult because they’re not a
numerical minority. They can assemble a political majority because there are
more w than m. W used to be excluded from voting so #s didn’t matter, & they
WERE excluded. But now that they can vote, organize, & protect selves from
majority, it’s not clear why they need special protection, needing heightened
scrutiny under EPC
6. Possible reasons for need to protect w under EPC:
a. isolation in society
b. informal barriers (campaign finance, lunch-club groups that make deals
informally)
c. psych barriers (they’ve been dealt w/as subordinate for a while…& are
psych barriers among both the dominant & subordinated group)
7. Intermediate review was born for w…a majority of the Sup Court has never voted
for gender as a special category. But they said though it needs less than strict
scrutiny, it needs more than rational basis review.
ii. Traditional approach for gender classifications used til 19781:
1. Ex: Bradwell v IL (upheld law denying w right to practice law)
iii. Sex discr violates EPC & is based on arbitrary nature of legislative choice favoring men:
Reed v Reed
1. Facts: Laws in all 50 states then had a presumption that the person to represent
your estate if you die would be a male. If U die w/o will, law usually chooses
closest relationship to deceased – spouse, child, etc. but can be 2 “equal” people,
& the law used gender to break tie if it was, ie, a male & female cousin. Men
 considered to have more practical business experience & not need more guidance.
That got challenged in this case.
2. Held:
a. gender’s not a suspect classification.
b. State can’t prefer men over w in appointing estate administrators simply
to reduce workload of probate courts.
c. Stereotypes can’t be used to decide public policy
3. Other options of what can court do if you break presumption in Reed?
a. hearing to decide who’ll be in charge (but that’ll pit fam against each
other)
b. Random
iv. Military can’t require servicewomen, but not servicemen, show that their spouses are
actually dependent before claiming them as “dependents”: Frontiero v Richardson
1. sole justification is administrative inconvenience…that’s not significant enough
of a government interest or reasonably related to classification to withstand close
scrutiny.
v. State can’t impose gender-based differentials for alcohol sales: Craig v Boren
1. Facts: OK law allowed w to buy beer at 18, & men at 21.
2. Held: though state interest (traffic safety) is clearly impt, relation b/w that & the
statute isn’t adequate.
vi. Differences: real & imagined
1. W can be excluded from contact positions as prison guards in all-male prisons:
Dothard v Rawlingson (womanhood could directly reduce her relative ability to
maintain order…would be real risk of assaults & sex offenses)
2. Statutory rape
a. state’s statutory rape law may permit prosecution only against men:
Michael M v Superior Court
i. legisl can’t make overbroad generlalizations based on sex that’re
unrelated to any differences b/w men & women or that demean
the status of the affected class. But legisl may realistically reflect
the fact that sexes are different in some circumstances.
ii. purpose of preventing illegit pregnancy & related soc harms is
valid, & means is sufficiently related. Gender-neutral statute
would have more enforcement difficulties & may not be equally
effective.
b. Feminist critique of statutory rape
i. Violate w’s right to be as sexually free as m
ii. Reinforce sexual stereotype of m as aggressors & w as passive
victims
iii. (But, such laws do protect w from individual men, & may
prohibit some sex assaults that couldn’t be prosecuted as forcible
rape)
3. Congress may restrict draft registration to men: Rostker v Goldberg
a. Purpose of registr is to prepare for a draft of combat troops. W aren’t
eligible for combat, so classification is sufficiently & closely related to
purpose.
4. Exclusion of disability that accompanies pregnancy & childbirth from state
disability insurance system doesn’t exclude anyone due to gender: Geduldig v
Aiello
a. Though only w can be pregnant, not every legisl classification concerning
pregnancy is sex-based.
b. Need a showing that pregnancy’s a mere pretext designed to effect discr
against a gender to win on such a claim.
5. : US v VA
a. Facts:
 i. VMI – an all male school. Some w wanna attend. Educ
philosophy was to brutalize each other thru hazing – needed phys
strength, so m would be more tolerant of it. Statistically few w
will survive the phys training & mental horror. And curriculum
would hafta change for w entering school
ii. As for a remedy, VA considered opening all-w school, but it
would de-emphasize military educ & use cooperative method of
educ, based on differences b/w m & w that VA perceived.
b. Held:
i. VA showed no persuasive justification from excluding w from
VMI. No evidence of furthering diversity to have a male-only
admissions policy.
ii. The women’s counterpart wouldn’t be equal to VMI, as far as
military training, nor history/prestige/alumni
network/faculty/course offerings/facilities, etc. Such remedy’s
inadequate.
c. Note: efficiency costs aren’t a defense to EPC. But there must be a limit
to when the costs may be too big to push for equality.
vii. Remedial discr
1. Note: this is for public markets (Private employers would be regulated by Title 7).
2. Congress can discriminate b/w m & w in insurance benefit amounts in order to
compensate w for adverse past discr: Califano v Webster
a. Facts: Insurance benefits scheme gave w fewer elapsed yrs from which to
exclude lower earnings yrs in order to increase the average monthly wage.
Gave higher old-age benefits to female wage earners than similarly
situated m.
b. Held: scheme is substantially related to purpose of reducing econ
disparity caused by history of discr against w. If w’s past earnings were
lo due to discr, it’s proper to correspondingly increase their benefits.
3. State can’t exclude m from admission to professional nursing school: Mississippi
v Hogan
a. Facts: state school excluded males from admission, but let em audit, their
nursing school
b. Held:
i. Purpose was to compensate for discr against w. But w earn big
majority of nursing degrees so effect of policy is to perpetuate
stereotype of nursing as a w’s job.
ii. And means isn’t substantially & directly related to goal: since me
can audit & participate in educ, their presence must not adversely
affect w.
4. Sup court held it’s a violation of EPC for schools to force pregnant w to stop
teaching at a pt when the w were still phys able to teach
d. Fundamental rights
i. Intro: Other strand of traditional equal protection: the substantive part of equal protection
1. Once you decide what groups get the protection, must decide what public goods
are so important that their distribution should be presumptively equal; the moment
they are presumed to be unequal, there must be some explanation for the
inequality. This is the “fundamental rights” theory of equal protection review.
2. There are some substantive rights that are so important that there must be real
justification for distributing them unequally
3. Problems
a. How do you know what a right is?
b. Why do we trust the majority to help the politically powerless?
4. fundamental rights jurisprudence got frozen at 3 levels:
a. Voting
 b. Travel (interstate and maybe right to travel abroad)
i. Sup Court has always struck down attempted CA restrictions on
blockin migration (Felony to introduce a pauper, No welfare for
people coming in, Only the amount of welfare in CA that the
person would get in old state)
c. Procreation - sterilization cases
d.
ii. Voting
1. In the absence of a strong enough justification, role of courts to make sure
everyone has a right to vote
a.
2. d
3. d
 Voting—Marshall created. Like gays, education was closed down. Had to close the door; otherwise there would
be no stopping.
 Has the procreation strand mutated into an autonomy strand under Roe v. Wade. Majority of the court looks at it
as autonomy. Ginseberg says equality.

Are we talking about equality or due process. These are non-textual rights. There’s nothing in the constitution about
travel, procreation or voting.
 In fact, there’s no constitutional protection for voting for the president. Under the literal language of the
constitution, the legislature could meet and legislate who the electors will be.
 This is why for so long 15th A was used for voting. It only gives a right not to be discriminated on the basis of
race. This provision was easy to get around.

Once you admit that there are fundamental rights that need to protect, why does the court have the power to bestow the
rights on everyone? Why can’t a court enjoin everyone from getting the rights? Why does the court have the power to
make a positive reallocation? Why not negative?

Combine fundamental rights plus positive enforcement power = de facto substantive right.

Impact—even when frozen—is protection of democracy.

Questions
1. If going to build a foundation of a law of democracy, would we build it on the equal protection clause? This has
tied the law of democracy to the vagaries of a highly controversial jurisprudence (people think court drove as far as
it can go and can’t go any further). Law of democracy is hostage to whether you like or don’t like fundamental
rights jurisprudence. Law of democracy shouldn’t be controversial?
2. We have treated the guarantee clause as a political question—Luther v. Borden (which government is legit gov’t of
RI). Guarantee clause guarantees a republican form of democracy.
3. The right to vote could also be protected through the 1st A—expression. Would make the right more stable?
4. Marshall argued that when dealing with fundamental rights, don’t need to intend to violate fundamental right; just
need the effect of violating fundamental right. Never been completely resolved in the court.
a. Lower courts that say that it is effect test say that it is really a disguised substantive rights case; closest is 1 st A;
therefore effect test.
b. Other lower courts say that this is Washington v. Davis and that this is really equal protection and requires
intent.

Tracing
1. Carrington: (1965) A case arising out of TX where for years people on military bases were not permitted to vote
in surrounding communities b/c their residence in community was transitory. The argument was though that the
people on the bases were deeply involved in school decisions, sewer decisions, etc. There was a sub rosa racism as
well b/c the military is disproportionately black, esp. NCO’s. Bulk of people being disenfranchised were black.
COURT: People want the right to vote but can’t b/c they work at the military base. This was phrased that way to
avoid the problem that there is no federal right to vote. TX law says who can vote or not. The question is by what
 right does a federal constitutional court pass judgement on TX officials as to what the voting rights should be.
Where’s the federal right? Look for it in the equal protection clause—voting is such an important right that it can’t
be differentially allocated with some fundamental overwhelming justification.
EFFECT: Turned military bases into possible centers of civil rights organizations. Led to court marshalling of a
lot of black activists who tried to work for the movement.
2. Kramer: A school board election in Great Neck under which the criteria for voting are set in the following ways:
can vote if (1) child in the school (anyone); (2) if they pay property taxes in the community (since property taxes
pay for schools). If have neither, don’t vote in the school board elections. This is challenged by Mr. Kramer who
was still living with his parents at an advanced age. Goes up to Supreme Court applying the Carrington formula.
This is a hard question. There is no baseline. As long as one person can vote and another can’t there is a violation
of a fundamental right. Don’t treat under rational basis scrutiny. Get the strict scrutiny that goes with fundamental
rights. Trigger top-tier strict scrutiny—this is fatal in fact. Very little that goes in comes out alive. The moment it
is strict scrutiny you’ve struck down the allocation.

If kramer is good law, what restriction on the right to vote could ever be imposed? What’s the difference b/n this
and a textual right to vote.

The limit on Kramer are cases that are mentioned in notes. It stops at some point. Expanded to bond elections.

3. Harper: Striking down poll taxes. This is easy too. Saying someone can’t vote b/c don’t have enough money is a
natural fit to the equal protection clause.

April 20, 2001

NIE

14th A = engine that drives equality in constitution.

Victim Groups: Identified by protecting groups that need help b/c of democratic failure

Fundamental Rights: What things are so important to us that where one person gets something and a another doesn’t
we want the gov’t to fix it?

Due Process Clause in the 14th A

 Redundant in that it is just repeating the 5th A (which applies to Fed Gov’t) and using it in terms of states.
Aspects of Clause
FIRST MAJOR RULE
 Driven discussions about fair procedure. Get it in Crim. Pro., Fed. Cts, Crim.
SECOND MAJOR ROLE
 The textual vehicle through which the Supreme Court beginning in the 1930s-1960s incorporated the substantive
rights within the Bill of Rights.
 Repeated decisions up until Civil War said that Bill of Rights only applied against US. Barron v. Baltimore.
 Then 13th, 14th, 15th A that imposed national norms on the states. Equality norms—applied to the states.
 It looks like the equality norms only applied to states; substantive rights of 1 st 10 A only applied of US. That’s
the natural reading of the text.
 However in Bolling v. Shaw (DC segregation in schools), couldn’t use 14th A. DC is a federal colony—federal
instrumentality. Had to find anther norm. There is no equality norm in Const. The Court said that the due process
clause of the 5th A subsumed the equality norms of the 13th, 14th, and 15th As. Thus the equality norms of the 14th
thrown back on the federal gov’t by the 5th. Adventurous use of text?
 Simultaneously took the due process language of the 14 th to roll the Bill of Rights as against the states. This began
in the late 1930s—incorporation doctrine. Dramatic act. Creates enforceable national standards of fundamental
human rights. Without it there is no verbal vehicle in the constitution to do this. Multiplies and nationalizes
human rights.
  During Nixon and Regan admins there were movements to say that the incorporation doctrine was invalid and
that it was just a power grab by the Court. Atty Gen’l Meese. Seems to have died down.
 Weakness, pressure point on national power over the states. Where you want to attack if you’re states rights.
 Could this have taken place at any other point in US history? We lived through a period where there were
radical regional disparities about what fundamental human rights were.
 As the centralizing tendencies are relaxing will the hold of the 14 th A also relax?
THIRD MAJOR ROLE
 Substantive role. Comes out of effort to regulate markets in late 19 th C, early 20th C.
 There were debtor-controlled legislatures that put limitations on large amount of capital that limited its capacity to
earn a return.
 Companies fought back—their money invested; inherent right to get a certain return. Where can’t get a fair return
on capital, said denying something and called it “due process.”
 Today we might think about this as a regulatory taking. Much of substantive due process has morphed into a
regulatory taking.
 Quickly becomes an important doctrine and spreads as a way of talking about the market.
 Then becomes a fundamental liberty value. Early privacy/autonomy cases were based on the idea that the gov’t
can’t tell you what to do—2nd Generation of substantive due process. Early 1st A cases were on substantive due
process (until 1931—Stromberg). Meyer v. Nebraska, an attempt to forbid teaching of German in Schools. It was
struck down by the Supreme Court on due process grounds. Pierce v. Soc’y of Sisters—effort to wipe out
parochial schools. Supreme Court said that it was a violation of fundamental human liberty; you choose where to
educate kids. Now also 1st A.
 Economic substantive cases are examples of what courts shouldn’t do now. It has become a legal “dirty word” so
that the modern use is quite limited.
 It occasionally bubbles out. Powell said it was there as a safety valve? Zoning law that forbade living together in
an apartment unless within a certain consanguinity. A Grandmother and a great-niece couldn’t live together.
Substantive due process; families have right to live together and gov’t can’t take it away. Thus doctrine is not
dead.
 Neuborne’s own view is that the old substantive due process jurisprudence has morphed into 2 paths.
1. Fundamental Rights Jurisprudence—just substantive due process dressed up in different clothes.
2. Autonomy Cases/Privacy Cases—culminating in Roe v. Wade (battleground of current discussions abt law)
really just substantive due process. Courts w/o text discovering and enforcing new values. Why Ginsberg
wants to retrench these cases in some more fundamental text/line of cases.
3. 9th A? Is this a codification of substantive due process? Is it the window for discovery and enforcement of
new values?

14th A is a very limited kind of law.

 Constitutional law applies to a very small slice of relationships—to those b/n individuals and state. In other
countries con-law creates rights against private individuals. We’ve always had here a strong and
textually/culturally driven notion that it’s just individual/state; individual/individual governed by statute or
common law. Constitution is really just an educator of values. The values themselves don’t have self-enforcing
impact on private relationships.
 Even in the United States that idea isn’t universally held. Constitutions of 1/3 of states purport to provide law for
everyone (European model). Provide rights against private people that that the federal constitution does not.
Remember that the state constitutions exist and codify values in federal constitution and roll them down to
individuals.

STATE ACTION DOCTRINE

 Most of the time if it “looks like, smells like” you know it’s the gov’t. Gov’t usually ‘shows up with a gun’.
 However in modern soc’y there are ‘mixed creatures.’ When and under what circumstances do activities become
imbued with enough state interference to ripen into state action?
1. White Primary Cases: efforts by entrenched political actors to segregate de facto elections.
a. Election is state action—ruling by the Court. Political actors would concede.
b. Then they’d argue that primary private action.
 c. Court says Primary integral part of election of general candidates. Since intimately associated with the
gen’l election, it is also state action. Political actors retreat.
d. Some retreat into caucus/conventions; just organizes people to support candidates in primary?
e. Some retreat into private primary—privately funded. The “Blue Jay Primaries.”
f. Court pursued these retreats in a series of cases. The Supreme Court in 1948 said Blue Jay Primary was
also state action.
g. Morse v. VA Rep. Party: Tried to abandon primaries and go to ‘open convention.’ You just had to pay
$50. Was that state action? What was this nominating creature when there really probably wasn’t a racial
animus? It was really an effort to organize a different way of nominating a candidate. Court said that the
Voting rights act applied and didn’t reach the state action cases. At what point does state function morph
into state action?
2. What about privatized prisons? Do prisoners in private prisons have fundamental protections
that prisoners in gov’t prisons have? If abolish fire dep’t and either privatize it or have a volunteer dept. can it
discriminate? (NO.)
a. When Brown came down, the move was to private schools that were free from the constitution.
b. Then the question became could the private schools receive money? One of the unfortunate judgements
that was made was to use the establishment clause to block flow of money to parallel private school
institutions.
c. Would it be preferable to argue $ = state action?
2. Juries.

4/24/01

14th A consists of 5 sections. Sct 1 & 5 are key.

Sct 1: creates substantive rights (EPC, due process, citizenship rights)…purpose is to create subst rights which Sup
Court then construes. Procedure, nationalization of bill or rights, & substantive norms that’re needed – those are big 3
things
Sct 5: to give Congress legisl power to enforce those norms of Sct 5. grants Sct 1 power to Congress
-What if Congress & court disagree about substance of Sct 1?
-Suppose Sup Court thinks Sct 1 guarantees you right X, & Congress thinks that’s too broad, & that
the right is X-1.
-the harder q is when Congress construes it as X+1. Ex: Washington v Davis: 14 th A includes a
component of fault/intent. Congress says that’s wrong, it wanted an effects test instead. It expanded
the 14th A rights. Can Congress do this – provide additional rights beyond 14th A to really enjoy Sct 1
rights? Essentially, the Court compromised by imposing restrictions – ordinarily, Congress can’t go
beyond Sct 1, unless it made a decision based on an overwhelming record that the need for some
prophylactic protection exists to enjoy baseline rights.
-Ex: Congress was allowed by Court to prohibit literacy tests that blocked blacks from enjoyin
certain jobs.
-But the current Court has been ruthless in refusing to allow Congress to adopt such
prophylactic tests.
-There’s another compromise for private people. they’re treated like the state for purposes of this
issue, if Congress tries to expand Sct 5 rights.
-Where private people make it impossible for state to carry out responsibilities. Congress hasta link
exercise of §5 power in some way to state actions. To legislate against private people, it can’t be
under §5. §5 doesn’t give legislation authority in all areas. Existing Court has slammed the door on
Congress usin §5 for private parties (ie for justifyin striking down violence against women act). Must
justify such things under commerce clause. Regulation of personal conduct which effects commerce,
though indirectly, might be regulated under commerce clause because it’s hard to under §5 of 14 th A.

-text gives barely any help in 14th A, unlike 1st A. it’s just too hard to give the philosophy of equality in an Amen text.
-No autonomy text or autonomy/privacy clause.
-But there’s just a sense that these are impt values for us. So, they must be in Const & we should look for em. that
sets up the 1st q. Is the entire enterprise of intuiting impt values, then finding a place in the text where they might fit,
then claiming you’re enforcing the const, ok? It provides for a lot of subjective interpretation.

-1st place we look is natural law…a sense of inherent justice. (ie justice requires U allow access to contraception, that
U allow em to choose whether they want control over their reproductive powers.) those ideas come from something
deeper than the const - - our philosophy of how society should look. But then it’s hard to go forward into all kindsa
other things (health, housing, educ, employment.) problem w/natural law as way of determining nature of const
philosophy is that it’s too rich – hard to decide what should & shouldn’t be in the const. and courts wouldn’t have
enough resources to enforce all these rights.

-next place to look: substantive due process:

Ex: -Moore: leading reminder that court can trupm due process to protect autonomy, here, family autonomy,
though it was in violation of zoning ordinance. Substantive due process might not be the place to look, then.

-9th A privacy: next place to look. Many of early reproductive freedom, contraception, & forced sterilization cases:
argued that 9th A privacy gives right against another, so whether to bear kids can be private choice.

-Another place to look: EPC (like substantive due process): says if U give a right to 1 person, can’t not give it to
another.

-another place to look: 1st A association of freedom could be read real broadly – association freedom explains many
autonomy cases. Sexual association, marriage, etc are rights of association, the arg can go.

-final textual place to look: traditional equal protection: victimized groups can’t protect & organize themselves, so
should get special protectsion of EPC.

Those are the args that get made in these cases about where these rights come from.

1st 3 cases all fit together. Are classic examples:

Skinner, Griswald, & Eisenstatt
Skinner: compulsory sterilization. Court says that can’t be done.
1st contrac cases:
Griswald (I think): flat prohibition statutes on makin contraceptives available to anyone, including married couples.
So, was arg that because it dealt w/marriage, state was interferin w/freedom of association rights. This began the move
to nontextual answers
Eisentatt: was unmarried people. Court said since U can’t do it to married people, can’t do it to unmarried people. it’s
either a clean evolution from Skinner, or…

Jump to Roe than becomes a hard intellectual jump. Jump from Skinner to Roe was easy. Skinner: can’t tell someone
they CAN’T have a child. Roe: can’t tell someone they MUST have a job. But Griswald & Eisentatt make it not so
clear why Roe had to be so tough of an opinion. Wouldn’t have been so difficult to go from Skinner to Roe.

When U get to Roe, arg is that the fetus has already been conceived…can call it life…it complicates the idea. So
Court must find in the Const allocation of moral & legal power & autonomy b/w woman & fetus. That makes the case
hard.

Another angle: state can’t substitute its own ideal onto the doctor about his profession. Affects decision b/w woman &
doctor. So Court used a disassociation tactic by sayin political / value judgments can’t interfere w/association. Some
construe the case as: state can’t tell docs how to practice medicine.

When during pregnancy does fetus become something that the state can’t regulate?

Roe is re-asserted by 3 justices (spearheaded by O Connor) in Curtis (Casey?).

Casey: once Sup Court has found rights in Const text & then people get used to living w/em, the rights become part of
culture, & for Sup Court to take em away is very destabilizing & injurious. Failure to follow precedents & risks of
frustrating expectations of people are 2 of the problems w/that. that’s a recipe for soc disorder & weakening court
power.

So Roe’s reaffirmed.
But Casey might be unstable…may be either a beg of principle thry of precedents or just a reaffirmation of abortion
rights.
W rights critics of Casey say it invites…

Ginsburg: can’t think of Roe v Wade as an autonomy case.

Moore, Zablockey, michealich

Those are manifestations of the same problem – autonomy from the state, or autonomy of a special relationship.
If U succeed in building a wall of fam autonomy, U run risk of state reluctance to interfere, like for domestic violence
cases.
Moore: substantive due process case. Struck down zoning laws to make it impossible for relatively close fam units to
live together. Refused to acknowledge that in some communities, esp lower econ, extended fam relationships are
much more impt. Didn’t really acknowledge that the zoning laws were aimed, at least in part, at keeping some blacks
outta the neighborhoods.

Zablocky: marriage case. Interference w/ability to get married. Court said ability to get married is too impt to be
trumped. This coulda won under any of the rationales above (ie association, 9 th A, substantive due process, etc)

Bowers: fits in really right after Roe. Is a sexual autonomy case. Behaviors surrounding sexual urges should be
beyond the state.

Right to die cases

Can submit outline for the final. Along w/my answers.